An Act relating to the preservation and use of archival
resources, and for related purposes
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Archives
Act 1983.
2 Commencement [see Note 1]
The several Parts of this Act shall come
into operation on such respective dates as are fixed by Proclamation.
3
Interpretation
(1) In this Act, unless the contrary
intention appears:
Archives means the National Archives of Australia
mentioned in subsection 5(1).
authority of the Commonwealth means:
(a) an authority, body, tribunal or
organization, whether incorporated or unincorporated, established for a public
purpose:
(i) by, or in accordance
with the provisions of, an Act, regulations made under an Act or a law of a
Territory other than the Northern Territory or Norfolk Island;
(ii) by the
Governor–General; or
(iii) by, or with the
approval of, a Minister;
(b) the holder of a prescribed office
under the Commonwealth; or
(c) a
Commonwealth–controlled company or a Commonwealth–controlled association;
but does not include:
(d) a court;
(e) the Australian Capital Territory;
(f) a body established by or under an
enactment within the meaning of the Australian Capital Territory
(Self–Government) Act 1988;
(g) the Northern Territory; or
(h) the Administration of an external
Territory.
Cabinet notebook means a notebook or other
like record that contains notes of discussions or deliberations taking place in
a meeting of the Cabinet or of a committee of the Cabinet, being notes made in
the course of those discussions or deliberations by, or under the authority of,
the Secretary to the Cabinet.
Census day has the meaning given by section 22B.
Census information means information
transferred to the custody of the Archives under section 8A of the Census
and Statistics Act 1905.
Chairman means the Chairman of the Council.
Commonwealth–controlled association means an
association over which the Commonwealth is in a position to exercise control,
but does not include an association that is declared by the regulations not to
be a Commonwealth–controlled association.
Commonwealth–controlled company means an
incorporated company over which the Commonwealth is in a position to exercise
control, but does not include a company that is declared by the regulations not
to be a Commonwealth–controlled company.
Commonwealth institution means:
(a) the official establishment of the
Governor–General;
(b) the Executive Council;
(c) the Senate;
(d) the House of Representatives;
(e) a Department;
(f) a Federal court or a court of a
Territory other than the Northern Territory or Norfolk Island;
(g) an authority of the Commonwealth;
or
(h) the Administration of an external
Territory other than Norfolk Island.
Commonwealth record
means:
(a) a record that is the property of
the Commonwealth or of a Commonwealth institution; or
(b) a
record that is to be deemed to be a Commonwealth record by virtue of a
regulation under subsection (6) or by virtue of section 22;
but does not include a record that is exempt material or
is a register or guide maintained in accordance with Part VIII.
Council means the National Archives of
Australia Advisory Council mentioned in subsection 10(1).
current Commonwealth record means a
Commonwealth record that is required to be readily available for the purposes
of a Commonwealth institution, other than purposes under this Act.
Department means:
(a) a Department of the Australian
Public Service that corresponds to a Department of State of the Commonwealth;
or
(b) a Parliamentary Department.
Deputy Chairman means the Deputy Chairman of
the Council.
Director–General means the person for the
time being occupying the office, or performing the duties of the office, of
Director–General of the National Archives of Australia under the Public
Service Act 1999.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
exempt material means:
(a) material included in the memorial
collection within the meaning of the Australian War Memorial Act 1980,
other than material to which a regulation under subsection (6) applies;
(b) material included in the
collection of library material maintained by the National Library of Australia;
(c) material included in the
collection of works of art maintained by the Australian National Gallery;
(d) material included in the
historical material in the possession of the Museum of Australia; or
(e) material
included in a collection maintained by an institution declared by the
regulations to be a custodial institution for the purposes of this definition;
other than material (if any) that came to be so included
by reason of a contravention of section 24.
material means records and other objects.
material of the Archives means:
(a) records in the custody of the
Archives (other than current Commonwealth records relating to the
administration of the Archives); or
(b) an
object, other than a record, that forms part of the archival resources relating
to Australia and is in the custody of the Archives;
and includes material kept in the custody of a person in
accordance with arrangements made under section 64.
National Witness Protection Program means the
Program by that name established by the Witness Protection Act 1994.
object does not include a building or other
structure or a vessel, aircraft or vehicle, other than a prescribed vessel,
aircraft or vehicle.
Parliamentary Department means a Department
of the Parliament established under the Parliamentary Service Act 1999.
person includes a Commonwealth institution or
an organization.
record means a document (including any
written or printed material) or object (including a sound recording, coded
storage device, magnetic tape or disc, microform, photograph, film, map, plan
or model or a painting or other pictorial or graphic work) that is, or has
been, kept by reason of any information or matter that it contains or can be
obtained from it or by reason of its connection with any event, person,
circumstance or thing.
responsible Minister, in relation to a Commonwealth
record, means the Minister to whose ministerial responsibilities the record is
most closely related.
Royal Commission means a Commissioner or
Commissioners appointed by the Governor–General in the name of the Queen to
make inquiry and report upon any matter.
Tribunal means the Administrative Appeals
Tribunal.
(2) For the purposes of this Act, the
archival resources of the Commonwealth consist of such Commonwealth records and
other material as are of national significance or public interest and relate
to:
(a) the history or government of Australia;
(b) the legal basis, origin,
development, organization or activities of the Commonwealth or of a
Commonwealth institution;
(c) a person who is, or has at any
time been, associated with a Commonwealth institution;
(d) the history or government of a
Territory; or
(e) an
international or other organization the membership of which includes, or has
included, the Commonwealth or a Commonwealth institution;
but do not include:
(f) material that, in the opinion of
the Minister, ought to be in the archives of another country or in the archives
of an international organization;
(g) material that relates only or
principally to the history or government of a State, the Northern Territory or Norfolk
Island or of a Colony that became part of the Commonwealth, not being:
(i) Commonwealth records;
(ii) property referred to
in section 85 of the Constitution; or
(iii) material transferred
to the Commonwealth by a State, the Northern Territory or Norfolk Island under
a law or agreement;
(h) material, other than Commonwealth
records, relating only to a place that has been, but has ceased to be, a
Territory; or
(j) exempt material.
(3) For the purposes of this Act, the
Department of Defence shall be deemed to include:
(a) the Defence Force;
(b) the Australian Army Cadets;
(c) the Australian Navy Cadets; and
(d) the Australian Air Force Cadets.
(3A) In this Act, a reference to the provision
of a discretionary service for a person is a reference to the doing of an act
by the Archives, being an act that the Archives has power to do and that it
does at the person’s request, other than an act that:
(a) this Act requires the Archives to
do; or
(b) it is necessary for the Archives
to do for the proper performance of its functions.
(4) For the purposes of this Act, the
Australian Federal Police shall be deemed to be an authority of the
Commonwealth.
(5) For the purposes of this Act, a record
held by or on behalf of the Parliament or a House of the Parliament shall be
taken to be the property of the Commonwealth.
(6) The regulations may make provision under
which, in specified cases or circumstances, records of which the Commonwealth
or a Commonwealth institution has, or is entitled to have, possession are to be
deemed to be Commonwealth records for the purposes of the provisions, or
specified provisions, of this Act.
(7) For the purposes of this Act, a record is
in the open access period if a period of 30 years has elapsed since the end of
the year ending on 31 December in which the record came into existence.
Note: Records containing Census information, and
Cabinet notebooks, have different open access periods: see sections 22A
and 22B.
(8) Nothing in this Act shall be taken to
confer power on the Archives to affect the custody of:
(a) material, being Commonwealth
records, that was held at the commencement of Part II by a State, the
Northern Territory or Norfolk Island or by an authority of a State, of the
Northern Territory or of Norfolk Island and has continued since that time to be
so held by that State, that Territory or that authority; or
(b) material,
other than Commonwealth records, that is held at any time by a State or by a
Territory or authority referred to in paragraph (a);
except with the consent of the State, Territory or
authority by which the material is held.
3A A
company no longer established for a public purpose
An authority, body, tribunal or
organisation, whether incorporated or unincorporated, established for a public
purpose is to be taken, for the purposes of this Act, never to have been so
established, only if:
(a) a legislative provision; or
(b) regulations
made for the purpose of this section;
expressly provide that, for the purposes of this Act, the
authority, body, tribunal or organisation is to be taken never to have been so
established.
3B
Commonwealth–controlled companies or associations that are not authorities of
the Commonwealth
If a company or association was,
immediately before the commencement of this section:
(a) a Commonwealth–controlled company
or a Commonwealth–controlled association that was:
(i) not established for a
public purpose; and
(ii) not prescribed under paragraph (c)
of the definition of authority of the Commonwealth as then in
force; or
(b) a Commonwealth–controlled company
or a Commonwealth–controlled association that was:
(i) established for a
public purpose; but
(ii) taken,
under a provision of an Act, never to have been so established;
then, despite paragraph (c) of the definition of authority
of the Commonwealth, the company or association is to be taken not to
be an authority of the Commonwealth.
4
Extension to Territories
This Act extends to every external
Territory.
4A
Application of the Criminal Code
Chapter 2 of the Criminal
Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part II—Establishment, functions and powers of the National Archives
of Australia
5
Establishment and functions of National Archives of Australia
(1) There shall be, within the Department, an
organization by the name of the National Archives of Australia.
(2) The functions of the National Archives of
Australia are, subject to this Act:
(a) to ensure the conservation and
preservation of the existing and future archival resources of the Commonwealth;
(b) to encourage and foster the
preservation of all other archival resources relating to Australia;
(c) to promote, by providing advice
and other assistance to Commonwealth institutions, the keeping of current
Commonwealth records in an efficient and economical manner and in a manner that
will facilitate their use as part of the archival resources of the
Commonwealth;
(d) to ascertain the material that
constitutes the archival resources of the Commonwealth;
(e) to have the custody and management
of Commonwealth records, other than current Commonwealth records, that:
(i) are part of the
archival resources of the Commonwealth;
(ii) ought to be examined
to ascertain whether they are part of those archival resources; or
(iii) although they are not
part of those archival resources, are required to be permanently or temporarily
preserved;
(f) to seek to obtain, and to have
the custody and management of, material (including Commonwealth records) not in
the custody of a Commonwealth institution, that forms part of the archival
resources of the Commonwealth and, in the opinion of the Director–General,
ought to be in the custody of the Archives;
(g) with the approval of the Minister,
to accept and have the custody and management of material that, though not part
of the archival resources of the Commonwealth, forms part of archival resources
relating to Australia and, in the opinion of the Minister, ought to be in the
custody of the Archives in order to ensure its preservation or for any other
reason;
(h) to encourage, facilitate,
publicise and sponsor the use of archival material;
(j) to make Commonwealth records
available for public access in accordance with this Act and to take part in
arrangements for other access to Commonwealth records;
(k) to conduct research, and provide
advice, in relation to the management and preservation of records and other
archival material;
(l) to develop and foster the
co–ordination of activities relating to the preservation and use of the
archival resources of the Commonwealth and other archival resources relating to
Australia; and
(m) with the approval of the Minister,
and in accordance with arrangements made with a person responsible for exempt material,
to perform any of the foregoing functions in relation to that material as if
that material formed part of the archival resources of the Commonwealth.
(3) Nothing in this Part derogates from the
powers and functions of the Public Service Board or any other Commonwealth
institution in relation to the keeping of current Commonwealth records.
6
Powers of Archives
(1) The Archives may do all things that are
necessary or convenient to be done for or in connection with the performance of
its functions and, in particular, without limiting the generality of the
foregoing, may:
(a) establish and control repositories
or other facilities to house or exhibit material of the Archives and, in
association with a State, the Australian Capital Territory, the Northern
Territory or other person, control repositories or other facilities in which
material of the Archives is housed or exhibited;
(b) undertake the survey, appraisal,
accessioning, arrangement, description and indexing of Commonwealth records;
(c) make arrangements for the
acquisition by the Commonwealth of, or of copyright in relation to, or
arrangements relating to the custody of, material that forms part of the
archival resources of the Commonwealth;
(d) chronicle and record matters
relating to the structure and functioning of Commonwealth institutions or other
matters of archival significance and make records for the purpose of adding to
the archival resources of the Commonwealth;
(e) make copies, by microfilming or
otherwise, of archival material, but not so as to infringe copyright (other
than copyright owned by the Commonwealth) subsisting in the material;
(f) arrange for the publication of
material forming part of the archival resources of the Commonwealth or works
based on such material, but not so as to infringe copyright (other than
copyright owned by the Commonwealth) subsisting in the material or works;
(g) publish indexes of, and other
guides to, archival material;
(h) authorize the disposal or
destruction of Commonwealth records;
(j) on request, assist Commonwealth
institutions in the training of persons responsible for the keeping of current
Commonwealth records;
(k) train, or assist in the training
of, persons, other than persons responsible for the keeping of current
Commonwealth records, for work in connection with records and other archival
material;
(l) obtain and maintain equipment for
use in retrieving, or otherwise obtaining, information from records; and
(m) provide information and facilities
for persons using the material of the Archives.
(2) Where, in the performance of its
functions, the Archives enters into arrangements to accept the custody of
records from a person other than a Commonwealth institution, those arrangements
may provide for the extent (if any) to which the Archives or other persons are
to have access to those records and any such arrangements have effect
notwithstanding anything contained in Division 3 of Part V.
(3) Where an arrangement entered into by the
Archives to accept the custody of records from a person other than a
Commonwealth institution relates to a Commonwealth record, then, to the extent
that that arrangement, in so far as it relates to such a record, is
inconsistent with a provision of Part V, that provision shall prevail.
Part III—The Director–General and staff of the Archives
7
Director–General
(1) There shall be a Director–General of the
National Archives of Australia, who shall be a person appointed or engaged
under the Public Service Act 1999.
(2) The Director–General, in addition to
exercising powers or performing duties expressly conferred or imposed on him or
her by this Act, may, in the name of the Archives, exercise any powers and
perform any duties that are by this Act expressed to be conferred or imposed on
the Archives.
(3) The Minister may give directions, not
inconsistent with this Act, to the Director–General in relation to the exercise
of his or her powers, and the performance of his or her duties, under this Act.
8
Delegation by Director–General
(1) The Director–General may, either
generally or as otherwise provided by the instrument of delegation, by writing
under his or her hand, delegate to a person all or any of his or her powers
under this Act, other than this power of delegation.
(2) A power so delegated, when exercised by
the delegate, shall, for the purposes of this Act, be deemed to have been
exercised by the Director–General.
(3) A delegation under this section does not
prevent the exercise of a power by the Director–General.
9
Staff
The staff of the Archives shall be
persons engaged under the Public Service Act 1999.
Part IV—National Archives of Australia Advisory Council
10
National Archives of Australia Advisory Council
(1) There is established by this Act a
Council by the name of the National Archives of Australia Advisory Council.
(2) The Council shall consist of:
(a) a Senator chosen by the Senate;
(b) a member of the House of
Representatives chosen by that House; and
(c) 11 other members, appointed by the
Minister.
(3) A member chosen by either House of the
Parliament holds office, subject to this Act, for such period, not exceeding 3
years, as is fixed by that House at the time of his or her choice.
(4) A member appointed by the Minister holds
office, subject to this Act, for such period, not exceeding 3 years, as the
Minister specifies in the instrument of his or her appointment.
(5) A member chosen by either House of the
Parliament or appointed by the Minister is eligible for further choice or
re–appointment.
(6) The performance of the functions of the
Council is not affected by reason of there being a vacancy or vacancies in the
membership of the Council.
11
Functions of Council
(1) The Council shall furnish advice to the
Minister and the Director–General with respect to matters to which the
functions of the Archives relate.
(2) The Minister or the Director–General may
refer any matter of the kind referred to in subsection (1) to the Council
for advice and the Council may, if it thinks fit, consider and advise the
Minister or the Director–General on a matter of that kind of its own motion.
12
Chairman and Deputy Chairman of Council
The Minister shall appoint a member to
be Chairman of the Council and another member to be Deputy Chairman of the
Council.
13
Deputies of members
(1) A member chosen by the Senate or by the
House of Representatives may appoint a Senator or a member of the House of
Representatives, as the case may be, to be his or her deputy.
(2) The Minister may appoint a person to be a
deputy of a member referred to in paragraph 10(2)(c).
(3) The deputy of a member is, in the event
of the absence of the member from a meeting of the Council, entitled to attend
that meeting and, when so attending, shall be deemed to be a member of the
Council.
14
Remuneration and allowances of members
(1) A member referred to in paragraph
10(2)(c), or the deputy of such a member, shall be paid such remuneration as is
determined by the Remuneration Tribunal but, if no determination of that
remuneration by the Tribunal is in operation, he or she shall be paid such
remuneration as is prescribed.
(2) A member referred to in paragraph 10(2)(c),
or the deputy of such a member, shall be paid such allowances as are
prescribed.
(3) A member referred to in paragraph 10(2)(a)
or (b), or the deputy of such a member, shall be reimbursed such expenses as he
or she reasonably incurs by reason of his or her attendance at meetings of the
Council or of his or her engagement, with the approval of the Council, on the
affairs of the Council.
(4) This section has effect subject to the
Remuneration Tribunals Act 1973.
15
Termination of office of member
(1) The Minister may terminate the
appointment of a member, being a member appointed by the Minister, by reason of
misbehaviour or physical or mental incapacity.
(2) If a member appointed by the Minister is
absent, except on leave granted by the Council, from 3 consecutive meetings of
the Council, the Minister may terminate the appointment of the member.
(3) A member chosen by either House of the
Parliament may be removed from office by that House.
(4) If a member chosen by either House of the
Parliament or a deputy of such a member ceases to be a member of that House, he
or she shall cease to be a member of the Council or a deputy of such a member.
(5) For the purposes of subsection (4),
a member of either House of the Parliament shall be deemed not to have ceased
to be a member of that House while he or she continues to be entitled to the
Parliamentary allowances that became payable to him or her as such a member.
16
Resignation of member
(1) A member appointed by the Minister may
resign his or her office by writing signed by him or her and delivered to the
Minister.
(2) A member chosen by the Senate may resign
his or her office by writing signed by him or her and delivered to the
President of the Senate.
(3) A member chosen by the House of
Representatives may resign his or her office by writing signed by him or her
and delivered to the Speaker of the House of Representatives.
17
Meetings of the Council
(1) The Council shall hold such meetings as
are necessary for the performance of its functions.
(2) The Chairman may at any time convene a
meeting of the Council.
(3) The Chairman shall, on receipt of a
request in writing signed by 2 other members of the Council, convene a meeting
of the Council.
(4) At a meeting of the Council a majority of
the members of the Council constitute a quorum.
(5) The Director–General is entitled to
receive notice of meetings of the Council, and the Director–General, or a
member of the staff of the Archives nominated by him or her, may attend any
meeting of the Council and take such part in the proceedings, not including
voting, as the Council approves.
(6) The Chairman shall preside at all
meetings of the Council at which he or she is present.
(7) If, at a meeting of the Council, the
Chairman is not present but the Deputy Chairman is present, the Deputy Chairman
shall preside at the meeting.
(8) If neither the Chairman nor the Deputy
Chairman is present at a meeting of the Council, the members present shall
elect one of their number to preside at the meeting.
(9) Questions arising at a meeting of the
Council shall be determined by a majority of the votes of the members present
and voting.
(10) The member presiding at a meeting of the
Council has a deliberative vote and, in the event of an equality of votes, also
has a casting vote.
(11) In subsections (2) and (3), a
reference to the Chairman shall, if there is no Chairman or the Chairman is
absent from Australia or unable to perform the duties of his or her office, be
read as a reference to the Deputy Chairman.
Part V—Commonwealth records
Division 1—Preliminary
18
Records of the Parliament
Subject to sections 20 and 21,
Divisions 2 and 3 do not apply to records in the possession of the Senate,
the House of Representatives or a Parliamentary Department.
19
Court records
(1) Subject to sections 20 and 21,
Divisions 2 and 3 do not apply to records in the possession of a court or
of a registry of a court.
(2) Divisions 4 and 5 do not apply to
records in the possession of a court or of a registry of a court, other than
records that are of an administrative nature.
20
Regulations and arrangements relating to certain records
(1) Subject to this section, the regulations
may provide that all or any of the provisions of Divisions 2 and 3 are, in
such circumstances and subject to such conditions as are prescribed, to apply
to all or any of the records referred to in section 18 or subsection
19(1), and may provide that those provisions are so to apply subject to such
modifications as are prescribed.
(2) Regulations shall not be made for the
purposes of subsection (1) in relation to the application of the
provisions of Divisions 2 and 3 to records in the possession of the Senate,
the House of Representatives or a Parliamentary Department, unless there has
been consultation between the Minister and:
(a) in the case of records in the
possession of the Senate or of the Department of the Senate—the President of
the Senate;
(b) in the case of records in the
possession of the House of Representatives or of the Department of the House of
Representatives—the Speaker of the House of Representatives; or
(c) in
the case of records in the possession of a Parliamentary Department other than
the Department of the Senate or the Department of the House of
Representatives—both the President of the Senate and the Speaker of the House
of Representatives;
concerning the application of those provisions to those
records.
(3) Regulations shall not be made for the
purposes of subsection (1) in relation to the application of the
provisions of Divisions 2 and 3 to records in the possession of a court or
of a registry of a court unless there has been consultation between the
Minister and the Chief Justice or Chief Judge of that court, or, if there is no
Chief Justice or Chief Judge, the judicial officer of that court whom the
Minister is satisfied has, from time to time, the principal responsibility for
the administration of the business of that court, concerning the application of
those provisions to those records.
21
Archives may be given custody of certain records
(1) Subject to any regulations made in
accordance with section 20, a person having the control of the custody of
any records referred to in section 18 or subsection 19(1) may enter into
arrangements with the Archives with respect to the custody of those records.
(2) Arrangements referred to in subsection (1)
relating to the custody of records may provide for the extent (if any) to which
the Archives or other persons are to have access to those records.
22
Records of Royal Commissions
(1) This section applies to the records kept
by a Royal Commission, whether the inquiry was commenced or was completed
before or after the commencement of this Part.
(2) The Commonwealth is entitled to the
possession of records kept by a Royal Commission that are no longer required
for the purposes of the Commission, and all such records shall be deemed to be
Commonwealth records for the purposes of this Act.
(3) Records referred to in subsection (2)
shall be kept in such custody as the responsible Minister directs and the
Archives is not entitled to the custody of any such records except in
accordance with such a direction.
(4) A direction given by a Royal Commission
prohibiting the publication of any document or matter does not apply to the
provision of public access under this Act to any records that are in the open
access period or to the publication by any person of any records that are
available for public access in accordance with this Act.
(5) For the purposes of this Act, the
Minister administering the Royal Commissions Act 1902 shall be deemed to
be the responsible Minister in relation to the records of a Royal Commission.
(6) Where a Royal Commission has conducted an
inquiry by virtue of a commission issued by the Governor of a State in
conjunction with its inquiry under a commission issued by the Governor–General,
subsections (2) and (3) apply only to such of the records of the Royal
Commission as are determined by agreement between the Commonwealth and the
State.
22A
Cabinet notebooks
(1) For the purposes of the application of
this Act in relation to Cabinet notebooks, a Cabinet notebook is in the open
access period if a period of 50 years has elapsed since the end of the year
ending on 31 December in which the Cabinet notebook came into existence.
(2) Subsection 3(7) does not apply in
relation to Cabinet notebooks.
22B
Census information
(1) For the purposes of this Act, a record
containing Census information from a particular Census is in the open access
period for that Census if a period of 99 years has elapsed since the Census day
for that Census.
(2) Subsection 3(7) and section 56 do
not apply to records containing Census information.
(3) In this Act:
Census day, for a Census, means
the day appointed, under subsection 8(2) of the Census and Statistics Act
1905, as the Census day for that Census.
23
Records of inter–governmental authorities
The regulations may provide for
restricting or excluding the operation of all or any of the provisions of this
Act in relation to all or any records of or relating to an authority or body
established:
(a) for the performance of functions
under the law of the Commonwealth and the law of any State or States, the
Australian Capital Territory, the Northern Territory, Norfolk Island or another
country; or
(b) for
the purpose of an agreement between the Commonwealth and any State or States,
the Australian Capital Territory, the Northern Territory, Norfolk Island or
another country;
or to the operations of an authority or body so
established.
Division 2—Dealings with Commonwealth records
24
Disposal, destruction etc. of Commonwealth records
(1) Subject to this Part, a person must not
engage in conduct that results in:
(a) the destruction or other disposal
of a Commonwealth record; or
(b) the transfer of the custody or
ownership of a Commonwealth record; or
(c) damage to or alteration of a
Commonwealth record.
Penalty: 20 penalty units.
(1A) For the purposes of an offence against subsection (1),
strict liability applies to the physical element of circumstance of the
offence, that the record is a Commonwealth record.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) Subsection (1) does not apply to
anything done:
(a) as required by any law;
(b) with the permission of the
Archives or in accordance with a practice or procedure approved by the
Archives;
(c) in accordance with a normal
administrative practice, other than a practice of a Department or authority of
the Commonwealth of which the Archives has notified the Department or authority
that it disapproves; or
(d) for the purpose of placing
Commonwealth records that are not in the custody of the Commonwealth or of a
Commonwealth institution in the custody of the Commonwealth or of a
Commonwealth institution that is entitled to custody of the records.
(3) Subsection (1) does not apply to the
destruction of a Commonwealth record, being a record to which subsection 47(1),
70(1) or 107(1) of the Copyright Act 1968 applies, where the
Director–General has declined to consent to the delivery of the record to the
Archives.
(4) This section does not authorize the
Archives to permit the destruction or other disposal of a Commonwealth record
that is in the possession of, or has been received into the custody of the
Archives from, a Commonwealth institution, without the consent of that
institution or of a Commonwealth institution that has succeeded to the relevant
functions of that institution.
(5) For the purposes of the application of subsection (1)
to a record of a kind used by means of any mechanical or electronic device or
equipment, including a computer, any treatment or modification of the record
that would prevent the obtaining from the record of information or matter that
could previously have been obtained from the record shall be deemed to be
destruction of the record.
25
Advice to Council on disposal practices
(1) The Archives shall:
(a) as soon as practicable after the
commencement of this Part, furnish to the Council a statement in writing
setting out particulars of the practices followed by, or approved by, the
Archives in respect of the destruction or other disposal of Commonwealth
records whether or not those practices have been agreed upon between the
Archives and any particular Commonwealth institution;
(b) in a case where, after the
commencement of this Part, the Archives alters, or approves any alteration of,
any practice of a kind referred to in paragraph (a), not being a practice
agreed upon between the Archives and a Commonwealth institution—furnish to the
Council a statement setting out particulars of the alteration to that practice
as soon as practicable after the Archives has decided to alter, or to approve
the alteration of, that practice and, where possible, before the implementation
of the practice as so altered; and
(c) in a case where practices for the
destruction or other disposal of Commonwealth records are agreed upon at any
time after the commencement of this Part between the Archives and a
Commonwealth institution—furnish to the Council a statement setting out
particulars of those practices as soon as practicable after those practices
have been agreed upon and, where possible, before the implementation of those
practices.
(2) A reference in subsection (1) to
practices agreed upon between the Archives and a Commonwealth institution
includes a reference to practices so agreed upon that vary practices that have,
whether before or after the commencement of this Part, been previously agreed
upon between the Archives and that institution.
26
Alteration of Commonwealth records
(1) A person is guilty of an offence if:
(a) a Commonwealth record has been in
existence for more than 25 years; and
(b) the person engages in conduct; and
(c) the person’s conduct results in an
addition to or an alteration of the record.
Penalty: 20 penalty units.
(1A) Strict liability applies to paragraph (1)(a).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) Subsection (1) does not apply to
anything done:
(a) as required by any law; or
(b) with the permission of the
Archives or in accordance with a practice or procedure approved by the
Archives.
27
Transfer of Commonwealth records to Archives
(1) Subject to this Part, when a Commonwealth
record in the possession of a Commonwealth institution other than the Archives
has ceased (whether before or after the commencement of this Part) to be
required to be readily available for the purposes of a Commonwealth institution,
the person responsible for the custody of the record shall, unless the record
is lawfully destroyed, cause it to be transferred to the custody of the
Archives in accordance with arrangements approved by the Archives.
(2) Subject to this Part, where a
Commonwealth record in the possession of a Commonwealth institution other than
the Archives has been in existence as a Commonwealth record for 25 years, the
Commonwealth institution shall, as soon as it is practicable to do so, cause
the record to be transferred to the custody of the Archives in accordance with
arrangements approved by the Archives.
28
Archives to have access to records
Subject to this Part, the Archives is
entitled, for the purposes of this Act, to full and free access, at all reasonable
times, to all Commonwealth records in the custody of a Commonwealth institution
other than the Archives.
28A
Records of companies or associations that cease to be authorities of the
Commonwealth
If a company or association that is an
authority of the Commonwealth ceases, on a particular day, to be such an
authority of the Commonwealth, then, despite the company or association so
ceasing:
(a) the records of the company or
association that were in existence prior to that day continue to be Commonwealth
records; and
(b) the Archives may make arrangements
with the company or association to enable those records of the company or
association to be dealt with in accordance with the provisions of this Part in
the same manner as if the company or association had not ceased to be an
authority of the Commonwealth.
29
Exemption of certain records
(1) A Commonwealth institution, or a person
having authority to act on behalf of a Commonwealth institution, may, with the
concurrence of the Director–General, determine that a Commonwealth record, or
each record in a class of Commonwealth records, being a record or class of
records in the possession of the Commonwealth institution or relating to the
functions of the Commonwealth institution, is:
(a) a record that is not required to
be transferred to the custody of the Archives under section 27; or
(b) a
record to which the Archives is not to be entitled to have access under section 28
or is not to be entitled to have access under that section otherwise than on specified
conditions to be observed by the Archives;
and such a determination has effect for such period as is
specified in the determination but may at any time be revoked by the
Commonwealth institution or a person having authority to act on behalf of the
Commonwealth institution.
(2) Notwithstanding subsection (1), the
responsible Minister may determine that a Commonwealth record, or each record
in a class of Commonwealth records, is:
(a) a record that is not required to
be transferred to the custody of the Archives under section 27; or
(b) a
record to which the Archives is not to be entitled to have access under section 28
or is not to be entitled to have access under that section otherwise than on
specified conditions to be observed by the Archives;
and such a determination takes effect upon its being
notified to the Archives and has effect for such period as is specified in the
determination but may at any time be revoked by the responsible Minister.
(3) The Archives may agree with a
Commonwealth institution that records accepted into the custody of the Archives
from that institution are to be held on certain conditions to be observed by
the Archives, not being conditions inconsistent with this Part.
(4) Where:
(a) the Archives seeks access to a Commonwealth
record that is not in the custody of the Archives; and
(b) a
person responsible for the custody of the record considers that it might be
appropriate for a determination to be made under subsection (2) applying paragraph (2)(b)
to the record;
the person so responsible may forthwith notify the
Archives that he or she so considers and take appropriate action for enabling
consideration to be given by the responsible Minister to the making of such a
determination.
(5) Where a notification under subsection (4)
has been given in respect of a record, the Archives is not entitled to access
to the record for a period of one month from the date on which the notification
was given, but, if the notification is withdrawn by the person responsible for
the custody of the record before the expiration of that period, this subsection
ceases to have effect in relation to the record.
(6) A record that is in the open access
period is not, by virtue of a determination under subsection (1), a record
to which paragraph (1)(b) applies unless there is in force a certificate
of a Minister under section 34 in respect of the record.
(7) A record that is in the open access
period is not, by virtue of a determination under subsection (2), a record
to which paragraph (2)(b) applies unless there is in force a certificate
of a Minister under section 34 in respect of the record.
(8) The concurrence of the Director–General
is not required for the making of a determination under subsection (1) by,
or by a person having authority to act on behalf of, any of the following
Commonwealth institutions, namely:
(a) the Australian Security
Intelligence Organisation;
(b) the Australian Secret Intelligence
Service;
(ba) the Defence Imagery and Geospatial
Organisation;
(c) the Defence Signals Directorate;
(d) the Defence Intelligence
Organisation;
(e) the Office of National
Assessments; and
(f) the Inspector–General of
Intelligence and Security.
(9) The concurrence of the Director–General
is not required for the making of a determination under subsection (1) by
the Commissioner of the Australian Federal Police in relation to any record
that contains information the release of which would endanger the safety of a
person:
(a) who is, or has been, assessed for
inclusion in the National Witness Protection Program; or
(b) who is, or has been, a witness
within the meaning of the Witness Protection Act 1994 under that
Program.
30
Commonwealth records to be available to Commonwealth institutions
(1) The Archives shall ensure that all
Commonwealth records received into its custody from a Commonwealth institution
are made available, as reasonably required, for use by, or at the direction of,
that institution or a Commonwealth institution that has succeeded to the
relevant functions of that institution.
(2) Where a record that has been in existence
for more than 25 years is made available to a Commonwealth institution under subsection (1),
the record shall not be made available in a manner that involves its leaving
the custody of the Archives except as necessary for the proper conduct of the
business of the Commonwealth institution.
30A
Non–disclosure of Census information
Non–disclosure to another person
(1) An Archives officer must not, at any time
before a record containing Census information from a Census is in the open
access period for that Census, divulge or communicate any of that information
to another person (except to another Archives officer for the purposes of, or
in connection with, the performance of that other officer’s duties under this
Act).
Note: Section 70 of the Crimes Act 1914 creates
an offence in relation to the disclosure of information by Commonwealth
officers.
Non–disclosure to a court or tribunal
(2) A person who is or has been an Archives
officer must not, at any time before a record containing Census information
from a Census is in the open access period for that Census:
(a) be required to divulge or
communicate any of that information to a court or tribunal; or
(b) voluntarily give any of that
information in evidence in proceedings before a court or tribunal.
Section 58 has no effect on this section
(3) Section 58 does not affect the
operation of this section.
Definition
(4) In this
section:
Archives officer
means the Director–General or a member of the staff of the Archives.
Division 3—Access to Commonwealth records
31
Records in open access period to be publicly available
(1) Subject to this Part, the Archives shall
cause all Commonwealth records in the open access period that are in the
custody of the Archives or of a Commonwealth institution, other than exempt
records, to be made available for public access.
(2) A Commonwealth institution that has the
custody of Commonwealth records in the open access period, other than exempt
records, shall make such arrangements with the Archives as will enable the
Archives to meet its obligations under subsection (1) in relation to those
records.
(3) Subject to any regulations made under
section 20, subsection (2) does not apply to:
(a) the Senate, the House of
Representatives or a Parliamentary Department, in relation to records in the
possession of the Senate, the House of Representatives or the Parliamentary
Department; or
(b) a court, in relation to records in
the possession of that court or of a registry of that court.
(4) The Archives may withhold a Commonwealth
record or a class of Commonwealth records from public access for a reasonable
time pending examination in accordance with section 35.
32
Consultation with States
(1) Where it appears to the Minister that the
Government of a State, of the Australian Capital Territory or of the Northern
Territory, as the case may be, might reasonably wish to contend that the making
available of a record under section 31 could adversely affect the
interests of that State, of the Australian Capital Territory or of the Northern
Territory, as the case may be, the record shall not be made available unless
there has been consultation between the Commonwealth and that State, the
Australian Capital Territory or the Northern Territory.
(2) For the purpose of facilitating
consultation under subsection (1), the Commonwealth may enter into such
arrangements with a State, with the Australian Capital Territory or with the Northern
Territory as it thinks appropriate.
33
Exempt records
(1) For the purposes of this Act, a
Commonwealth record is an exempt record if it contains information or matter of
any of the following kinds:
(a) information or matter the
disclosure of which under this Act could reasonably be expected to cause damage
to the security, defence or international relations of the Commonwealth;
(b) information or matter communicated
in confidence by or on behalf of a foreign government, an authority of a
foreign government or an international organization to the Government of the
Commonwealth, to an authority of the Commonwealth or to a person receiving the
communication on behalf of the Commonwealth or of an authority of the
Commonwealth, being information or matter the disclosure of which under this
Act would constitute a breach of that confidence;
(c) information or matter the
disclosure of which under this Act would have a substantial adverse effect on
the financial or property interests of the Commonwealth or of a Commonwealth
institution and would not, on balance, be in the public interest;
(d) information or matter the
disclosure of which under this Act would constitute a breach of confidence;
(e) information or matter the
disclosure of which under this Act would, or could reasonably be expected to:
(i) prejudice the conduct
of an investigation of a breach, or possible breach, of the law, or a failure,
or possible failure, to comply with a law relating to taxation or prejudice the
enforcement or proper administration of the law in a particular instance;
(ii) disclose, or enable a
person to ascertain, the existence or identity of a confidential source of
information in relation to the enforcement or administration of the law; or
(iii) endanger the life or
physical safety of any person;
(f) information or matter the disclosure
of which under this Act would, or could reasonably be expected to:
(i) prejudice the fair
trial of a person or the impartial adjudication of a particular case;
(ii) disclose lawful
methods or procedures for preventing, detecting, investigating, or dealing with
matters arising out of, breaches or evasions of the law the disclosure of which
would, or would be reasonably likely to, prejudice the effectiveness of those
methods or procedures; or
(iii) prejudice the
maintenance or enforcement of lawful methods for the protection of public
safety;
(g) information or matter the
disclosure of which under this Act would involve the unreasonable disclosure of
information relating to the personal affairs of any person (including a
deceased person);
(h) information or matter relating to
trade secrets, or any other information or matter having a commercial value
that would be, or could reasonably be expected to be, destroyed or diminished
if the information or matter were disclosed;
(j) information or matter (other than
information or matter referred to in paragraph (h)) concerning a person in
respect of his or her business or professional affairs or concerning the
business, commercial or financial affairs of an organization or undertaking,
being information or matter the disclosure of which would, or could reasonably
be expected to, unreasonably affect that person adversely in respect of his or
her lawful business or professional affairs or that organization or undertaking
in respect of its lawful business, commercial or financial affairs.
(1A) For the purposes of subparagraph (1)(e)(ii),
a confidential source of information in relation to the enforcement or
administration of the law includes:
(a) a person who is providing, or has
provided, confidential information to the Australian Crime Commission in
relation to such a matter; or
(b) a person who is providing, or has
provided, confidential information to the Australian Federal Police in relation
to such a matter; or
(ba) a person who is providing, or has
provided, confidential information to:
(i) the Integrity
Commissioner (within the meaning of the Law Enforcement Integrity
Commissioner Act 2006); or
(ii) a staff member of
ACLEI (within the meaning of that Act); or
(iii) a special investigator
for the purposes of Division 4 of Part 12 of that Act;
in relation to such a matter; or
(c) a person who is, or has been, a
witness within the meaning of the Witness Protection Act 1994 under the
National Witness Protection Program.
(2) For the purposes of this Act, a
Commonwealth record is an exempt record if it is of such a nature that:
(a) it would be privileged from
production in legal proceedings on the ground of legal professional privilege;
and
(b) disclosure of the record would be
contrary to the public interest.
(3) For the purposes of this Act, a
Commonwealth record is an exempt record if:
(a) it contains information or matter:
(i) that relates to the
personal affairs, or the business or professional affairs, of any person
(including a deceased person); or
(ii) that relates to the
business, commercial or financial affairs of an organization or undertaking;
and
(b) there is in force a law relating
to taxation that applies specifically to information or matter of that kind and
prohibits persons referred to in that law from disclosing information or matter
of that kind, whether the prohibition is absolute or is subject to exceptions
or qualifications.
(4) In paragraphs (1)(e) and (f) and subsection (3),
law means law of the Commonwealth or of a State or Territory.
(5) A reference in this section to an
undertaking includes a reference to an undertaking that is carried on by, or by
an authority of, the Commonwealth, a State, the Australian Capital Territory or
the Northern Territory or by a local government authority.
34
Certificates by Ministers as to certain exempt records
(1) Where a Minister is satisfied that a
record contains information or matter of a kind referred to in paragraph
33(1)(a) or (b), whether or not the record has been examined in accordance with
section 35 and whether or not a decision has been given in respect of the
record under that section, he or she may sign a certificate to that effect and,
subject to the operation of this Part, such a certificate, so long as it
remains in force, establishes conclusively that the record is an exempt record
referred to in the relevant paragraph of subsection 33(1).
(2) Where a Minister is satisfied as
mentioned in subsection (1) by reason only of information or matter
contained in a particular part or particular parts of a record, the certificate
under that subsection in respect of the record shall identify that part or
those parts of the record as containing the information or matter by reason of
which the certificate is given.
(3) Where a Minister is satisfied that
information as to the existence or non–existence of a record as described in an
application for access would, if contained in another record, cause that other
record to be an exempt record for the reason that it would contain information
or matter of a kind referred to in paragraph 33(1)(a) or (b), he or she may
sign a certificate to that effect (specifying that reason).
(4) The regulations may prescribe a period as
the period during which certificates under subsection (1) or (3), or any
specified class of such certificates, remain in force unless sooner revoked.
(5) Regulations made in pursuance of subsection (4)
may be expressed to apply to certificates signed before the day on which the
regulations take effect, but a certificate that is in force at the time when
any such regulations applying to the certificate take effect does not, by
reason of the regulations, cease to be in force before the expiration of a
period of one year from the date on which the regulations take effect.
(6) Notwithstanding subsection (4) and
any regulations under that subsection, where a certificate under this section
has been signed in respect of a record, a further certificate under this
section in respect of the record may be signed at any time, whether or not the
first–mentioned certificate is still in force.
(7) Where a certificate under this section is
in force in respect of a record, the record is not subject to examination under
section 35.
(8) A Minister
may, either generally or as otherwise provided by the instrument of delegation,
by writing signed by him or her, delegate all or any of his or her powers under
this section, other than this power of delegation, to:
(a) the Secretary of a Department
(within the meaning of the Public Service Act 1999); or
(b) the person holding, in relation to
a Commonwealth institution that is a prescribed authority for the purposes of
the Freedom of Information Act 1982, an office by virtue of which he or
she would, for the purposes of that Act, be the principal officer in respect of
that Commonwealth institution;
(c) the person holding, in relation to
a Commonwealth institution that is not a prescribed authority for the purposes
of the Freedom of Information Act 1982, an office declared by the
regulations to be the relevant office in respect of that Commonwealth
institution; or
(d) a person performing the duties of
an office referred to in paragraph (a), (b) or (c).
(9) A power delegated by a Minister under subsection (8),
when exercised by the delegate, shall, for the purposes of this Act, be deemed
to have been exercised by the Minister.
(10) A delegation by a Minister under subsection (8)
does not prevent the exercise of a power by the Minister.
35
Identification of exempt records
(1) The Director–General, in consultation
with the responsible Minister or a person authorized by the responsible
Minister, shall make arrangements for determining the Commonwealth records in
the open access period that are to be treated by the Archives as being exempt
records and may make arrangements for determining the extent to which access in
part to Commonwealth records identified as exempt records may be given without
disclosing the information or matter by reason of which the records are exempt
records.
(2) Except in the case of records exempted
from transfer to the custody of Archives by virtue of a determination under
section 29, an examination of records for the purposes of subsection (1)
shall be conducted on premises of the Archives.
(3) The identification of records as exempt
records in accordance with this section shall be conducted in accordance with
programs approved by the Director–General and may take place before the records
concerned become records in the open access period.
(4) Determinations under subsection (1)
in respect of records identified as exempt records shall be reviewed, in
accordance with arrangements made as referred to in that subsection, at such
intervals as the Director–General thinks appropriate having regard to the
nature of the records concerned and any other relevant circumstances and
whenever necessary for the purposes of reconsideration of a decision in
accordance with section 42.
(5) The functions of the Archives with
respect to public access to Commonwealth records in the open access period
shall be performed in conformity with the determinations made from time to time
under this section, except to the extent that any such determination is
inconsistent with a decision of the Tribunal on a review under this Act.
36
Forms of access
(1) Where the Archives is required by this
Part to cause a record to be made available for public access, any person is,
subject to this Part, entitled to access to the record.
(2) Access to a record may be given to a
person in one or more of the following forms:
(a) a reasonable opportunity to
inspect the record;
(b) on payment of a charge determined
in accordance with the regulations, provision to the person of a copy of the
record;
(c) in the case of a record from which
information or matter can be produced or made available in a particular form by
means of a computer, projector or other equipment, provision, on payment of a
charge determined in accordance with the regulations, of access to that
information or matter by the use of that equipment;
(d) in the case of a record by which
words are recorded in a manner in which they are capable of being reproduced in
the form of sound or in which words are contained in the form of shorthand
writing or in codified form, provision, on payment of a charge determined in
accordance with the regulations, of a written transcript of the words recorded
or contained in the record.
(3) Subject to subsection (4), where a
person has applied for access in a particular form, access shall be given in
that form.
(4) Where the giving of access under this
Part in the form requested by the person in his or her application for access:
(a) would interfere unreasonably with
the operations of the Archives or of another Commonwealth institution that has
the custody of the record;
(b) would not, having regard to the
physical nature of the record, be appropriate;
(c) would be detrimental to the
preservation of the record; or
(d) would,
but for this Act, involve an infringement of copyright (other than copyright
owned by the Commonwealth, a Commonwealth institution, a State, the Australian
Capital Territory or the Northern Territory) subsisting in matter contained in
the record, being matter that does not relate to the affairs of a Commonwealth
institution;
access in that form may be refused and access given in
another form.
(5) The reference in subsection (4) to
copyright owned by a Commonwealth institution shall not be taken to extend to
copyright owned by the Australian Broadcasting Corporation or the Special
Broadcasting Service Corporation in a work or other subject matter forming part
of its program material.
37
Conditions in respect of proper care of records
(1) The Director–General may, for the purpose
of ensuring the safe custody and proper preservation of any record, determine reasonable
conditions to which access to the record is to be subject, or determine that
the record is to be withheld from public access.
(2) Where a record is withheld in accordance
with subsection (1), a copy shall be provided where, in the opinion of the
Director–General, it is practicable to do so without detriment to the proper
preservation or safe custody of the record.
38
Access to part of exempt record
Where a record that would otherwise be
required to be made available for public access under this Part is an exempt
record, the Archives may, where it is reasonably practicable to do so, make
arrangements for part of, or a copy of part of, that record to which access
could be given without disclosing information or matter by reason of which the
record is an exempt record to be made available for public access in accordance
with this Part.
39
Information as to existence of certain documents
(1) Nothing in this Act shall be taken to
require the Archives to give information as to the existence or non–existence
of a record where information as to the existence or non–existence of that
record, if included in a Commonwealth record, would cause that last–mentioned
record to be an exempt record by virtue of paragraph 33(1)(a), (b) or (e).
(2) Where an application to the Archives for
access to a record relates to a record that is, or if it existed would be, of a
kind referred to in subsection (1), the Archives may give notice in
writing to the applicant that the Archives neither confirms nor denies the
existence, as a Commonwealth record, of such a record but that, assuming the
existence of such a record, it would be an exempt record, and, where such a
notice is given:
(a) section 40 applies as if the
decision to give such a notice were a decision referred to in that section; and
(b) the decision to give the notice
shall, for the purposes of Division 4, be deemed to be a decision of the
Archives refusing to grant the applicant access to the record on the ground
that the record is an exempt record under paragraph 33(1)(a), (b) or (e), as
the case may be.
40
Notification of decisions
(1) This section applies in relation to an
application to the Archives for access, or for an extension of partial access,
to a record referred to in section 31, being an application:
(a) in writing;
(b) expressed to be made in accordance
with this section;
(c) specifying an address in Australia
at which notices under this Act may be sent to the person making the
application; and
(d) providing such particulars, if
any, concerning the record to which it relates as are contained in the
Australian National Guide to Archival Material.
(2) The Archives shall give all reasonable
assistance to persons to enable them to make applications complying with paragraph (1)(d).
(3) Where an application to which this
section applies is made, the Archives shall take all reasonable steps to enable
the applicant to be notified of a decision on the application as soon as
practicable but in any case not later than 90 days after the day on which the application
is received by the Archives.
(4) The regulations may make provision that subsection (3)
is to have effect as if a specified shorter period were substituted for the
period of 90 days specified in that subsection.
(5) Where, in relation to an application, a
decision is made relating to a refusal to grant access to a record in
accordance with the application, the decision–maker shall cause the applicant
to be given notice in writing of the decision and the notice shall:
(a) state the findings on any material
questions of fact, referring to the material on which those findings were
based, and state the reasons for the decision;
(b) where the decision is a decision
of the Archives—state the name and designation of the person making the
decision; and
(c) give to the applicant appropriate
information concerning:
(i) his or her rights with
respect to a review of the decision;
(ii) his or her rights to
make a complaint to the Ombudsman in relation to the decision; and
(iii) the
procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii);
including (where applicable)
particulars of the manner in which an application for review under section 42 may
be made.
(6) Section 13 of the Administrative
Decisions (Judicial Review) Act 1977 does not apply to a decision of the
kind referred to in subsection (5).
(7) A notice under subsection (5) is not
required to contain any matter that is of such a nature that its inclusion in a
record would cause that record to be an exempt record under section 33.
(8) Where:
(a) an application to which this
section applies has been made;
(b) the period of 90 days, or such
other period as is applicable in accordance with regulations under subsection (4),
has elapsed since the day on which the application was received by the
Archives; and
(c) notice
of a decision on the application has not been received by the applicant;
the Archives shall, for the purpose of enabling an
application to be made to the Tribunal under section 43, be deemed to have
made, on the last day of that period, a decision refusing to grant access to
the record on the ground that the record is an exempt record.
(9) Where a complaint is made to the
Ombudsman under the Ombudsman Act 1976 concerning failure to make and
notify to the applicant a decision on an application (whether the complaint was
made before or after the expiration of the period referred to in subsection (8)),
an application to the Tribunal under section 43 of this Act by virtue of
that subsection shall not be made before the Ombudsman has informed the
applicant of the result of the complaint in accordance with section 12 of
the Ombudsman Act 1976.
(10) Where such a complaint is made before the
expiration of the period referred to in subsection (8), the Ombudsman, after
having investigated the complaint, may, if he or she is of the opinion that
there has been unreasonable delay by the Archives in connection with the
request, grant to the applicant a certificate certifying that he or she is of
that opinion, and, if the Ombudsman does so, the Archives shall, for the
purpose of enabling application to be made to the Tribunal under section 43,
be deemed to have made, on the day on which the certificate is granted, a
decision refusing to grant access to the record on the ground that the record
is an exempt record.
(11) Where, after an application has been made
to the Tribunal by virtue of subsection (8) but before the Tribunal has
finally dealt with the application, a decision in the matter to which the
application relates is given by the Archives, being a decision that is not
satisfactory to the applicant, the Tribunal may, at the request of the
applicant, treat the proceedings as extending to a review of that decision in
accordance with this Part.
(12) Before dealing further with an application
made to it by virtue of subsection (8), the Tribunal may, on the
application of the Director–General, allow further time to the Archives to deal
with the application for access.
Division 4—Review of decisions
41
Interpretation
For the purposes of this Division,
unless the contrary intention appears, a certificate given under subsection
34(3) in respect of a record as described in an application for access shall be
deemed to be a certificate given in respect of the record so described
notwithstanding that the certificate does not acknowledge the existence or
non–existence of the record so described.
42
Internal reconsideration of decisions
(1) Where a person has made an application to
which section 40 applies and is dissatisfied with the decision on the
application, he or she may, within 28 days after the day on which notice of the
decision was given to him or her or within such further period as the Archives
allows, apply in writing to the Archives for a reconsideration of the decision.
(2) Where an application for reconsideration
of a decision is made in accordance with this section, the Archives shall:
(a) reconsider the decision and for
that purpose arrange for any necessary review under section 35 of a
determination under that section; and
(b) as expeditiously as practicable,
give notice to the applicant of the decision reached on the reconsideration
(whether or not that decision confirms the previous decision).
(3) A decision by the Archives on an
application in accordance with this section for reconsideration of a decision
shall be made after consideration of the application by the Director–General or
a person authorized by him or her to deal with such applications.
(4) The provisions of section 40 extend
to a decision made under this section upon a review of a decision in relation
to the provision of access to a record that is the subject of an application
under that section.
43
Applications to Administrative Appeals Tribunal
(1) Subject to this section, an application may
be made to the Administrative Appeals Tribunal for a review of a decision of
the Archives in respect of access to a record, being:
(a) a decision refusing to grant to
the applicant access to the record on the ground that the record is an exempt
record or is a Commonwealth record to which Division 3 does not apply;
(b) a decision refusing to grant an
extension of partial access to the record on the ground that the record is an
exempt record and it is not practicable to make arrangements for giving the further
access desired by the applicant in a form that would not disclose information
or matter by reason of which the record is an exempt record;
(c) a decision refusing to grant to
the applicant access to the record on the ground that the record has been
withheld from public access pending examination of the record under section 35;
(d) a decision refusing to grant to
the applicant access to the record on the ground that a determination has been
made under section 37 that the record is to be withheld from public access
or refusing to grant to the applicant access to the record otherwise than on
specified conditions determined under that section;
(e) a decision refusing to grant to
the applicant access to the record in a particular form by reason of paragraph
36(4)(a), (b) or (d); or
(f) a decision refusing to allow a
further period for making an application under subsection 42(1) for a
reconsideration of a decision.
(2) Subject to subsection (3), where, in
relation to a decision referred to in subsection (1), a person is or has
been entitled to apply under section 42 for a reconsideration of the
decision, that person is not entitled to make an application under subsection (1)
in relation to that decision, but may make such an application in respect of the
decision made on such a reconsideration.
(3) Subsection (2) does not prevent an
application to the Tribunal in respect of a decision where:
(a) the person concerned has applied
under section 42 for a reconsideration of the decision;
(b) a period of 14 days has elapsed
since the day on which that application was received by the Archives; and
(c) he
or she has not been informed of the result of the review;
and such an application to the Tribunal may be treated by
the Tribunal as having been made within the time allowed by subsection (4)
if it appears to the Tribunal that there was no unreasonable delay in making
the application to the Tribunal.
(4) Notwithstanding section 29 of the
Administrative Appeals Tribunal Act 1975, the period within which (subject
to any extension granted by the Tribunal) an application under subsection (1)
of this section is to be made in respect of a decision is:
(a) except where paragraph (b) or
(c) applies—the period commencing on the day on which notice of the decision
was given to the applicant and ending on the sixtieth day after that day;
(b) where the decision is a decision
that is deemed by subsection 40(8) or (10) to have been made—the period
commencing on the day on which the decision is deemed to have been made and
ending on the sixtieth day after that day; or
(c) where subsection 55(4) is
applicable—the period commencing on the day on which the Ombudsman has informed
the applicant as referred to in that subsection and ending on the sixtieth day
after that day.
(5) If an application to the Tribunal for
review of a decision is made before a reconsideration of the decision in
accordance with section 42 has been completed and the result notified to
the applicant, the Tribunal may, if it is satisfied that further time is
reasonably necessary to enable the reconsideration to be completed, adjourn the
proceedings for such time as it thinks fit.
(6) Section 28 of the Administrative
Appeals Tribunal Act 1975 does not apply in relation to a decision in
respect of which an application may be made to the Tribunal under this section
where a notice under subsection 40(5) of this Act has been given to the
applicant.
(7) If the Tribunal, upon application for a
declaration under this subsection made to it by a person to whom a notice has
been furnished under subsection 40(5), considers that the notice does not
contain adequate particulars of findings on material questions of fact, an
adequate reference to the evidence or other material on which those findings
were based or adequate particulars of the reasons for the decision to which the
notice relates, the Tribunal may make a declaration accordingly, and, where the
Tribunal makes such a declaration, the person responsible for furnishing the
notice shall, as soon as practicable but in any case within 28 days after the
Tribunal makes the declaration, furnish to the applicant an additional notice
or additional notices containing further and better particulars in relation to
matters specified in the declaration with respect to those findings, that
evidence or other material or those reasons.
44
Powers of Tribunal
(1) Subject to this section, in proceedings
under this Division, the Tribunal has, in addition to any other power, the
power to review any decision of the Archives upon an application for access to
a record and to decide any matter in relation to that application that, under
this Act, could have been or could be decided by the Archives, and any decision
of the Tribunal under this section has the same effect as a decision of the
Archives.
(2) Where an applicant makes an application
under section 43 in respect of a decision of the kind referred to in paragraph (1)(d)
of that section, the Tribunal has power to grant access to the record to which
the application relates, or to grant access to that record on particular
conditions, notwithstanding any determination made by the Director–General
under section 37 in relation to that record.
(3) Where, in proceedings before the Tribunal
in pursuance of an application under section 43, it is established that a
record is an exempt record, the Tribunal does not, except as provided by subsection (7),
have power to decide that access is to be granted to the record.
(4) Where there is in force in respect of a
record a certificate under section 34, the powers of the Tribunal do not
extend to reviewing the decision to give the certificate but the Tribunal,
constituted in accordance with section 46, may determine such question in
relation to that certificate as is provided for in whichever of subsections (5)
and (6) applies in relation to that certificate.
(5) Where application is or has been made to
the Tribunal for the review of a decision refusing to grant access to a record
in accordance with an application under section 40, being a record that is
claimed to be an exempt record under paragraph 33(1)(a) or (b) and in respect
of which a certificate is in force under subsection 34(1), the Tribunal shall,
if the applicant so requests, determine the question whether there exist
reasonable grounds for that claim.
(6) Where application is or has been made to
the Tribunal for the review of a decision refusing to grant access to a record
in accordance with an application under section 40, being a record in
respect of which a certificate is in force under subsection 34(3), the Tribunal
shall, if the applicant so requests, determine the question whether there exist
reasonable grounds for the claim that information as to the existence or
non–existence of the record would, if contained in another record, cause that
other record to be an exempt record for the reason that it would contain
information or matter of a kind referred to in paragraph 33(1)(a) or (b).
(7) On a review in pursuance of an
application to the Tribunal under section 43, the Tribunal may, if it is
satisfied that it would be practicable to give access to, or to a copy of, part
of an exempt record in a form that would not disclose information or matter by
reason of which the record is an exempt record, direct that access be given
accordingly.
45
Proceedings upon exercise of powers under subsection 44(5) or (6)
(1) Where, in considering a question referred
to in subsection 44(5) or (6) in relation to a record in respect of which a
certificate has been given, the Tribunal determines that there do not exist
reasonable grounds for the claim to which the question relates, the appropriate
Minister shall, not later than 28 days after the determination of the Tribunal
is communicated to him or her, make a decision:
(a) to revoke the certificate; or
(b) not to revoke the certificate.
(2) Where a
Minister makes a decision under subsection (1) to revoke a certificate:
(a) in a case where the certificate
was given under subsection 34(1)—the claim that the record to which the
certificate relates is an exempt record shall be taken, for the purposes of
this Act, to have been withdrawn; and
(b) in a case where the certificate
was given under subsection 34(3)—the Minister shall, forthwith upon the
revocation of the certificate, inform the applicant of the existence or
non–existence of the record to which the certificate relates.
(3) Where a Minister makes a decision under subsection (1)
not to revoke a certificate, he or she shall:
(a) cause notice in writing of the
decision to be furnished to the applicant forthwith; and
(b) cause a copy of the notice to be
laid before each House of the Parliament within 5 sitting days of that House
after the notice is so furnished.
(4) A notice under subsection (3) shall
state the findings of the Minister giving the notice on any material question
of fact, the material on which those findings were based, and the reasons for
the decision.
(5) A Minister is not required to include in
a notice under subsection (3) matter that is of such a nature that its
inclusion in another record would cause that other record to be an exempt
record under section 33.
(6) A Minister is not required to include in
a notice under subsection (3) information as to the existence or
non–existence of a record or the existence or non–existence of a state of fact
if that information would, if included in another record, cause that other
record to be an exempt record under section 33.
(7) Section 13 of the Administrative
Decisions (Judicial Review) Act 1977 does not apply to a decision of the
Minister under this section.
(8) Nothing in this section shall be taken to
imply that a certificate under section 34 may not be revoked
otherwise than in pursuance of a decision under subsection (1).
(9) For the purposes of this section,
appropriate Minister, in relation to a record in respect of which a
certificate has been given under section 34, means the Minister who gave,
or whose delegate gave, the certificate.
46
Constitution of Tribunal for purposes of proceedings under subsection 44(5) or
(6)
(1) Where a request is made to the Tribunal
in accordance with subsection 44(5) or (6), the Tribunal shall be constituted
in accordance with subsection (2) for the purposes of any proceeding for
the determination of the question to which the request relates.
(2) For the purposes of a proceeding referred
to in subsection (1), the Tribunal shall be constituted by:
(a) 3 presidential members; or
(b) a presidential member alone.
(3) In its application to a proceeding
referred to in subsection (1), section 21A of the Administrative
Appeals Tribunal Act 1975 applies as if:
(a) subsection (1) of that
section were omitted and the following subsection substituted:
“(1) At
any time during the hearing of a proceeding before the Tribunal constituted in
accordance with subsection 46(2) of the Archives Act 1983 by a
presidential member alone, a party to the proceeding may make an application to
the Tribunal as constituted for the purposes of that proceeding requesting that
the Tribunal be reconstituted for the purposes of that proceeding.”;
and
(b) subsection (3) of that
section were omitted and the following subsection substituted:
“(3) The
President may, after taking the submissions into account, if he or she
considers that the matters to which the proceeding relates are of such public
importance as to justify him or her in so doing, give a direction varying the
constitution of the Tribunal for the purposes of that proceeding so that the
Tribunal is constituted by 3 presidential members.”.
(4) In its application to a proceeding
referred to in subsection (1), section 22 of the Administrative
Appeals Tribunal Act 1975 applies as if there were inserted after paragraph (1)(aa)
of that section the following paragraphs:
“(ab) if the Tribunal is constituted by
presidential members of whom at least 2 are Judges and none of whom is the
President—the senior Judge shall preside;
(ac) if the Tribunal is constituted by
presidential members none of whom is a Judge—one of those presidential members
who is directed by the President to do so shall preside;”.
47
Hearing of certain proceedings before the Tribunal
(1) This section has effect notwithstanding
anything contained in the Administrative Appeals Tribunal Act 1975.
(2) At the hearing of a proceeding referred
to in subsection 46(1), the Tribunal:
(a) shall hold in private the hearing
of any part of the proceeding during which evidence or information is given, or
a record or other document is produced, to the Tribunal by:
(i) a Commonwealth
institution or an officer of a Commonwealth institution; or
(ii) a Minister or a member
of the staff of a Minister; or
(iii) a member, an officer,
or a member of the staff, of a body referred to in subsection 29(8); or
(iiia) the Commissioner of
the Australian Federal Police, a Deputy Commissioner of the Australian Federal
Police, an AFP employee or a special member of the Australian Federal Police
(all within the meaning of the Australian Federal Police Act 1979), in
connection with the National Witness Protection Program;
or during which a submission is
made to the Tribunal by or on behalf of a Commonwealth institution or a
Minister, being a submission in relation to the claim:
(iv) in the case of a record
in respect of which there is in force a certificate under subsection 34(1)—that
the record is an exempt record; and
(v) in the case where a
certificate is in force under subsection 34(3)—that information as to the
existence or non–existence of a record as described in an application would, if
contained in another record, cause that other record to be an exempt record for
the reason that it would contain information or matter of a kind referred to in
paragraph 33(1)(a) or (b); and
(b) subject to subsection (4),
shall hold the hearing of any other part of the proceeding in public.
(3) Where the hearing of any part of a
proceeding is held in private in accordance with subsection (2), the
Tribunal:
(a) may, by order, give directions as
to the persons who may be present at that hearing; and
(b) shall give directions prohibiting
the publication of:
(i) any evidence or
information given to the Tribunal;
(ii) the contents of any
records or other documents lodged with, or received in evidence by, the
Tribunal; and
(iii) any
submission made to the Tribunal;
at that hearing.
(4) Where, in relation to a proceeding
referred to in subsection 46(1), the Tribunal is satisfied that it is desirable
to do so by reason of the confidential nature of any evidence, information or
matter or for any other reason, the Tribunal may, by order:
(a) direct that the hearing of a part
of the proceeding that, but for this subsection, would be held in public shall
take place in private and give directions as to the persons who may be present
at that hearing;
(b) give directions prohibiting or
restricting the publication of:
(i) the contents of any
record or other document lodged with the Tribunal in relation to the
proceeding; or
(ii) any evidence or
information given to the Tribunal, the contents of any record or other document
received in evidence by the Tribunal, or any submission made to the Tribunal,
in relation to the proceeding otherwise than at a hearing held in private in
accordance with subsection (2); or
(c) give directions prohibiting or
restricting the disclosure to some or all of the parties to the proceeding of
evidence given before the Tribunal, or the contents of a record or other
document lodged with, or received in evidence by, the Tribunal, in relation to
the proceeding.
(5) A direction given by the Tribunal under paragraph (3)(b)
or (4)(b) does not prevent a person referred to in subparagraph (2)(a)(i),
(ii) or (iii) from disclosing, in the course of the performance of his or her
duties, any matter to any other person.
48
Modification of section 42 of the Administrative Appeals Tribunal Act 1975
In its application to a proceeding
referred to in subsection 46(1) of this Act, section 42 of the
Administrative Appeals Tribunal Act 1975 applies as if subsection (3)
of that section were omitted and the following subsection substituted:
“(3) A question of law arising in a
proceeding before the Tribunal constituted in accordance with subsection 46(2)
of the Archives Act 1983 by 3 presidential members shall:
(a) in a case where one
only of those members is a Judge—be decided according to the opinion of that
member; and
(b) in a case where 2 of
those members are Judges—be decided according to the opinion of the majority.”.
49
Production to the Tribunal of records in relation to which a certificate has
been issued
(1) In any proceedings before the Tribunal
under this Act in relation to a record in respect of which there is in force a
certificate under section 34 the Tribunal is entitled to require the
production of the record in accordance with this section and not otherwise.
(2) Where, in considering a question referred
to in subsection 44(5) or (6) in relation to a record, the Tribunal is not
satisfied, by evidence on affidavit or otherwise, that there exist reasonable
grounds for the claim to which the question relates, the Tribunal may require the
record to be produced for inspection by the Tribunal as constituted for the
purposes of the proceeding.
(3) After an inspection of the record
referred to in subsection (2), the Tribunal shall return the record to the
person by whom it was produced without permitting any person who is not a
member of the Tribunal as constituted for the purposes of the proceeding, or a
member of the staff of the Tribunal in the course of the performance of his or
her duties as a member of that staff, to have access to the record or
disclosing the contents of the record to any such person.
50
Parties
For the purposes of this Part and of the
application of the Administrative Appeals Tribunal Act 1975 in respect
of proceedings under this Part:
(a) a decision given by the Archives
shall be deemed to have been given by the Director–General; and
(b) in proceedings for the
determination of a question referred to in subsection 44(5) or (6) in relation
to a record, the Minister who is the appropriate Minister for the purposes of
section 45 in relation to the record shall, upon application to the
Tribunal, be entitled to be a party to the proceedings.
51
Onus
In proceedings before the Tribunal in
pursuance of an application under section 43:
(a) the Archives has the onus of establishing
that a decision given by the Archives was justified or that the Tribunal should
give a decision adverse to the applicant; and
(b) the Tribunal is not restricted by
any determination made at any time under section 35.
52
Tribunal to ensure non–disclosure of certain matters
(1) In proceedings before the Tribunal in
pursuance of an application under section 43, other than proceedings
referred to in subsection 46(1), the Tribunal shall make such order or orders
under subsection 35(2) of the Administrative Appeals Tribunal Act 1975 as
it thinks necessary having regard to the nature of the proceedings and, in
particular, to the necessity of avoiding the disclosure to the applicant of:
(a) matter contained in a record to
which the proceedings relate, being matter by reason of which the record is an
exempt record; or
(b) information of the kind referred
to in subsection 39(1) of this Act.
(2) Notwithstanding anything contained in the
Administrative Appeals Tribunal Act 1975:
(a) the Tribunal shall not, in its
decision, or reasons for a decision, in a matter arising under this Act,
include any matter or information of a kind referred to in subsection (1);
and
(b) the Tribunal may receive evidence,
or hear argument, in the absence of the applicant or his or her representative
where it is necessary to do so in order to prevent the disclosure to the
applicant of matter or information of a kind referred to in subsection (1).
53
Production of exempt records
(1) Section 37 of the Administrative
Appeals Tribunal Act 1975 does not apply in relation to a document that is
claimed to be an exempt record but, in proceedings before the Tribunal in
relation to such a document, if the Tribunal is not satisfied, by evidence on
affidavit or otherwise, that the document is an exempt record, it may require
the document to be produced for inspection by members of the Tribunal only and
if, upon the inspection, the Tribunal is satisfied that the document is an
exempt record, the Tribunal shall return the document to the person by whom it
was produced without permitting any person other than a member of the Tribunal
as constituted for the purposes of the proceeding, or a member of the staff of
the Tribunal in the course of the performance of his or her duties as a member
of that staff, to have access to the document or disclosing the contents of the
document to any such person.
(2) The Tribunal may require the production,
for inspection by members of the Tribunal only, of an exempt record for the
purpose of determining whether, and to what extent, it is practicable for
arrangements to be made in accordance with section 38 and, where an exempt
record is produced by reason of such a requirement, the Tribunal shall, after
inspection of the record by the members of the Tribunal as constituted for the
purposes of the proceeding, return the record to the person by whom it was
produced without permitting any person other than such a member of the
Tribunal, or a member of the staff of the Tribunal in the course of the
performance of his or her duties as a member of that staff, to have access to
the record or disclosing the contents of the record to any such person.
(3) Notwithstanding subsections (1) and
(2), but subject to subsection (4), the Tribunal is not empowered, in any
proceedings other than proceedings to determine a question referred to in
subsection 44(5) or (6), to require:
(a) the production of a record in
respect of which a certificate is in force under subsection 34(1); or
(b) the giving of information in
respect of which a certificate is in force under subsection 34(3).
(4) Where a certificate of a kind referred to
in subsection (3) identifies a part or parts of the record concerned in
the manner provided in subsection 34(2), subsection (3) does not prevent
the Tribunal from requiring the production, in any proceedings before the
Tribunal under this Act in relation to the record, of a copy of so much of the
record as is not included in the part or parts so identified.
(5) Subsection (1) or (2) does not
operate so as to prevent the Tribunal from causing a document produced in
accordance with that subsection to be sent to the Federal Court of Australia in
accordance with section 46 of the Administrative Appeals Tribunal Act
1975, but, where such a document is so sent to the Court, the Court shall
do all things necessary to ensure that the contents of the document are not
disclosed (otherwise than in accordance with this Act) to any person other than
a member of the Court as constituted for the purpose of the proceeding before
the Court or a member of the staff of the Court in the course of the
performance of his or her duties as a member of that staff.
(6) Subsection (5) does not prevent the
Federal Court of Australia from causing the document concerned to be sent to
the Federal Magistrates Court as mentioned in subparagraph 46(1)(c)(i) of the Administrative
Appeals Tribunal Act 1975.
(7) If a document produced in accordance with
subsection (1) or (2) is sent to the Federal Magistrates Court as
mentioned in subparagraph 46(1)(c)(i) of the Administrative Appeals Tribunal
Act 1975, the Federal Magistrates Court must do all things necessary to
ensure that the contents of the document are not disclosed (otherwise than in
accordance with this Act) to any person other than:
(a) the Federal Magistrate who
constitutes the Federal Magistrates Court for the purposes of the proceeding
before the Federal Magistrates Court; or
(b) a member of the staff of the
Federal Magistrates Court in the course of the performance of his or her duties
as a member of that staff.
54
Evidence of certificates
In proceedings before the Tribunal under
this Division in pursuance of an application under section 43, evidence of
a certificate under section 34, including evidence of the identity or
nature of the record to which the certificate relates, may be given by
affidavit or otherwise and such evidence is admissible without production of
the certificate or of a record to which the certificate relates.
55
Complaints to Ombudsman
(1) Notwithstanding anything contained in
this Act or in subsection 6(3) of the Ombudsman Act 1976 but subject to
subsection 6(2) of that Act, the exercise of the powers of the Ombudsman under
that Act in respect of matters arising under this Act is not precluded or
restricted by reason of the rights conferred on persons by this Act to make
applications to the Tribunal.
(2) For the purposes of the Ombudsman Act
1976, action taken by the Archives in respect of an application made to the
Archives in relation to access to a record is declared to be action taken by
the Archives in relation to a matter of administration.
(3) A reference in subsection (2) to
action taken by the Archives shall be read as a reference to all such actions
as would, for the purposes of the Ombudsman Act 1976, be treated as
being action taken by the Archives.
(4) Where a complaint is made to the
Ombudsman under the Ombudsman Act 1976 concerning a decision under this
Act, an application to the Tribunal for a review of the decision shall not be
made before the Ombudsman has informed the applicant of the result of the
complaint in accordance with section 12 of that Act.
(5) Notwithstanding anything contained in the
Ombudsman Act 1976, a report under that Act in respect of a complaint
arising out of an application under this Act shall not contain information of
the kind referred to in subsection 39(1) of this Act.
Division 5—Miscellaneous
56
Arrangements for accelerated or special access
(1) The Minister or a person authorized by
him or her may, in accordance with arrangements approved by the Prime Minister,
cause all records in a particular class of Commonwealth records not in the open
access period to be available for public access.
(2) The Minister or a person authorised by
the Minister may, in accordance with arrangements approved by the Prime
Minister, cause Commonwealth records to be made available to a person in such
circumstances as are specified in the regulations notwithstanding that the
Commonwealth records concerned are not otherwise available for public access
under this Act.
(3) A person is guilty of an offence if:
(a) records are made available to the
person under subsection (2) on conditions to be observed by the person;
and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes
such a condition.
Penalty: 20 penalty units.
(4) An arrangement approved by the Prime
Minister under subsection (2) shall be recorded in writing, and the
Minister shall cause a copy of the arrangement to be made available to the
Council.
(5) The Minister shall, not later than 3
months after the commencement of this Part and thereafter at intervals of not
more than 3 months, cause to be made available to the Council a statement
setting out particulars of:
(a) each request for access to a
document under subsection (2) that is made during the period to which the
statement relates; and
(b) the
decision of the Minister or authorized person in relation to each such request;
not being a statement that would reveal the identity of
the person who made the request.
57
Protection against certain actions
(1) Where, in the ordinary course of the
administration of this Act, access is given to a record as being a record
required by this Part to be made available for public access:
(a) no action for defamation, breach
of confidence or infringement of copyright lies, by reason of the authorizing
or giving of the access, against the Commonwealth or any person concerned in
the authorizing or giving of the access;
(b) no action for defamation or breach
of confidence in respect of any publication involved in, or resulting from, the
giving of the access lies against the author of the record or any other person
by reason of that author or other person having supplied the record to a
Commonwealth institution; and
(c) a person concerned in the
authorizing or giving of the access is not guilty of a criminal offence by
reason only of the authorizing or giving of the access.
(1A) Where access to a record is given:
(a) under arrangements of the kind
referred to in subsection 6(2);
(b) in good faith in the belief that
the record is a record to which subsection 31(1) applies; or
(c) by making the record available:
(i) under subsection
56(1), for public access; or
(ii) under
subsection 56(2), to a person;
the access given to the record shall be taken, for the
purposes of subsection (1), to be given to the record as being a record
required by this Part to be made available for public access.
(2) The giving of access to a record
(including an exempt record) under this Act shall not be taken, for the
purposes of the law relating to defamation or breach of confidence, to
constitute an authorization or approval of the publication of the record or of
its contents by the person to whom the access was given.
58
Access to records apart from Act
Nothing in this Act prevents a person
from publishing or otherwise giving access to records (including exempt
records), otherwise than in pursuance of this Act where he or she can properly
do so or is required by law to do so.
59
Security classifications
Where a record has become available for
public access in accordance with this Part, any security classification
applicable to the record ceases to have effect for any purpose.
60
Transitional provisions relating to access
For the purposes of this Part, where, in
accordance with the administrative arrangements in operation before the
commencement of this Part, a record in the open access period has been withheld
from public access or has been made available for public access, a determination
shall be deemed to have been made in accordance with section 35
immediately after the commencement of this Part that the record is to be
treated as an exempt record, or that the record is not to be treated as an
exempt record, as the case may be.
Part VI—Objects of archival significance
61
Declaration of objects of archival significance
(1) Where it appears to the Minister that a
particular object that is the property of the Commonwealth or of a Commonwealth
institution and is in the possession of a Commonwealth institution is, or that
such objects of a particular description as are the property of the
Commonwealth or of a Commonwealth institution and are in the possession of a
Commonwealth institution are, part of the archival resources of the
Commonwealth, he or she may, by notice in the Gazette, declare the
object, or every such object, to be an object to which this section applies.
(2) If an object to which this section
applies has ceased (whether before or after the commencement of this Part) to
be required to be readily available for the purposes of a Commonwealth
institution, the person responsible for the custody of the object shall, if the
Archives so requires, cause it to be transferred to the custody of the Archives
in accordance with arrangements approved by the Archives.
(3) A person must not engage in conduct that
results in:
(a) the destruction or other disposal
of any object to which this section applies; or
(b) damage to such an object.
Penalty: 20 penalty units.
(4) Subsection (3) does not apply if the
person has the permission of the Archives to destroy, dispose of or damage the
object.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
62
Samples of material for Archives
(1) The Minister may, by notice published in
the Gazette, declare that a specified class of objects, not being
objects referred to in subsection (3), (4) or (5), is a class to which subsection (2)
applies.
(2) The Archives may require any Commonwealth
institution to cause to be delivered to the custody of the Archives samples of
objects included in a class of objects to which this subsection applies that
are the property of the Commonwealth or of the Commonwealth institution.
(3) The Reserve Bank of Australia shall cause
to be delivered to the custody of the Archives such samples as the Archives
requires of notes printed by, or under the authority of, the bank that are
legal tender throughout the Commonwealth.
(4) The Controller of the Royal Australian
Mint shall cause to be delivered to the custody of the Archives such samples as
the Archives requires of current coins caused by the Treasurer to be made.
(5) The Australian Postal Corporation shall
cause to be delivered to the custody of the Archives such samples of current
postage stamps issued by the Corporation as the Archives requires.
Part VII—Care of material of the Archives
63
Location of material of the Archives
(1) Subject to this Part, material of the Archives
shall be kept at such places as the Director–General considers appropriate.
(2) In considering the places at which
material of the Archives should be kept, the Director–General shall take into
account:
(a) the convenience of persons who are
likely to require access to the material;
(b) the desirability of keeping
related material in the same place; and
(c) the appropriateness of keeping in
a State or Territory material that relates in particular to that State or
Territory or to places in that State or Territory.
(3) Copies of records forming part of the
material of the Archives may be kept in such places as the Director–General
considers appropriate.
64
Custody of material of the Archives other than by Archives
(1) Subject to any other law of the
Commonwealth and to the rights of Commonwealth institutions, where the
Director–General considers it appropriate to do so, the Archives may make
arrangements with a person for material of the Archives to be kept in the
custody of that person.
(2) Arrangements referred to in subsection (1)
shall provide for the care of the material of the Archives to which they relate
and for the regular inspection of that material by the Archives.
(3) All material of the Archives that has
been delivered to the Archives in accordance with the Copyright Act 1968,
other than Commonwealth records, shall, subject to the consent of the
Director–General of the National Library of Australia, be deposited by the
Archives with the National Library of Australia.
Part VIII—Registers and guide relating to Archives
65
Australian National Register of Records
(1) The Archives shall maintain a register to
be known as the Australian National Register of Records.
(2) The Register shall contain such
particulars of the material of the Archives as the Director–General considers
appropriate.
(3) The Register may also contain such
particulars as the Director–General considers appropriate of:
(a) current Commonwealth records;
(b) material in State archives;
(c) material in other archives,
including private archives; and
(d) other archival resources relating
to Australia.
(4) For the purposes of this section, the
Archives shall seek the co–operation of the owners and custodians of material
in State archives and other archives.
66
Australian National Guide to Archival Material
(1) The Archives shall maintain a guide to be
known as the Australian National Guide to Archival Material.
(2) Subject to subsection (4), the Guide
shall contain particulars, in such form as the Director–General considers
appropriate, of all Commonwealth records in the open access period that have
been examined in accordance with subsection 35(1), other than:
(a) records with respect to the whole
of which a certificate under section 34 is in force; and
(b) parts of records identified in
accordance with subsection 34(2) in a certificate under section 34.
(3) Subject to subsection (4), the Guide
may also contain copies of particulars contained in the Australian National
Register of Records.
(4) The Guide
shall not include:
(a) particulars that would disclose
any information or matter of a kind referred to in section 33; or
(b) particulars the disclosure of
which would be contrary to any arrangements entered into by the Archives in
accordance with this Act.
(5) A copy of the Guide shall be kept at the
principal office of the Archives in each State and Territory in which the
Archives maintains an office and may be kept at such other offices of the
Archives as the Director–General considers appropriate.
(6) A person may inspect the Guide and is
entitled, on the payment of the appropriate charge determined under the
regulations, to receive a copy of the Guide or any part of the Guide.
67
Australian National Register of Research Involving Archives
(1) The Archives shall establish and maintain
a register to be known as the Australian National Register of Research
Involving Archives in which the Archives shall endeavour to list all research
that is being, or has been, conducted in or in relation to Australia and has involved,
or will involve, the use of archival material.
(2) For the purposes of subsection (1),
the Archives shall seek the co–operation of all persons and organizations
interested in research of the kind referred to in that subsection, including
the authorities of the States responsible for State archives and the
universities.
(3) A copy of the Register shall be kept at
the principal office of the Archives in each State and Territory in which the
Archives maintains an office and may be kept at such other offices of the
Archives as the Director–General considers appropriate.
(4) A person may inspect the Register and is
entitled, on the payment of the prescribed charge (if any), to receive a copy
of an entry in the Register.
Part IX—Miscellaneous
68 Annual
Report
(1) The Archives shall, as soon as
practicable after 30 June in each year, prepare and furnish to the
Minister a report of its operations during the 12 months ending on that date.
(2) The Council shall, as soon as practicable
after 30 June in each year, prepare and furnish to the Minister a report
concerning the proceedings of the Council during the 12 months ending on that
date.
(3) The first report under subsection (1)
and the first report under subsection (2) shall relate to the period commencing
on the date of commencement of this Part and ending on the next following 30 June.
(4) The Minister shall cause a copy of a
report furnished to him or her by the Archives or the Council under this
section to be laid before each House of the Parliament within 15 sitting days
of that House after the report is received by him or her.
69
Certified copies of records
(1) The Director–General may give a
certificate that a record referred to in the certificate is a true copy of a
record that is in the custody of the Archives and such a certificate is prima
facie evidence in all courts of the matters stated in the certificate.
(2) A writing purporting to be a certificate
given under this section shall, unless the contrary is proved, be deemed to be
such a certificate and to have been duly given.
69A
Charges for discretionary service for Commonwealth institutions
Where:
(a) the
Archives provides a discretionary service for a Commonwealth institution; and
(b) this
Act does not otherwise provide for a charge for the service;
the Archives may make a charge for the service of an
amount, or at a rate, determined in writing by the Director–General.
70
Transitional
(1) A reference in any law of the
Commonwealth or of a Territory, or in any agreement or arrangement, made before
the commencement of Part II, to the Commonwealth Archives Office, to the
Archival Authority or to the authority concerned with the preservation of the
archives shall, in respect of any time after the commencement of Part II,
be read as a reference to the Archives.
(2) Notwithstanding Part II,
arrangements in operation immediately before the commencement of Part II
relating to the disposal or custody of Commonwealth records may continue in
operation until the Director–General otherwise directs.
(3) Where, immediately before the
commencement of Part II, any records were in the custody of the
establishment known as the Australian Archives, as existing at that time, under
arrangements by which the custody of the records was accepted from a person
other than a Commonwealth institution by the Commonwealth, or by an authority
or person acting on behalf of the Commonwealth, those arrangements (including
any provision of those arrangements concerning access to or disposal of those
records) have effect from that commencement as if they were made, after that
commencement, by that person with the Archives, and subsection 6(2) applies
accordingly.
71
Regulations
The
Governor–General may make regulations, not inconsistent with this Act,
prescribing all matters:
(a) required
or permitted by this Act to be prescribed; or
(b) necessary
or convenient to be prescribed for carrying out or giving effect to this Act;
including, but without limiting the generality of the
foregoing, regulations making provision for or in relation to the making of, or
the requiring of deposits on account of, charges of amounts, or at rates, fixed
by or in accordance with the regulations in respect of:
(c) searches carried out to comply
with applications made for access to, or for information contained in, records;
(d) the provision of copies or
transcripts of records in pursuance of applications made in accordance with
this Act; and
(e) the provision of prescribed
discretionary services for persons other than Commonwealth institutions.