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.
2A
Objects of this Act
The objects of this Act are:
(a) to provide for a National Archives
of Australia, whose functions include:
(i) identifying the
archival resources of the Commonwealth; and
(ii) preserving and making
publicly available the archival resources of the Commonwealth; and
(iii) overseeing
Commonwealth record‑keeping, by determining standards and providing advice to
Commonwealth institutions; and
(b) to impose record‑keeping
obligations in respect of Commonwealth records.
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.
care: a record is in the care
of the Archives if:
(a) the record is in the custody of
the Archives; or
(b) the record is in the custody of a
person in accordance with arrangements referred to in section 64.
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.
Commission of inquiry means:
(a) the Commission of inquiry within
the meaning of the Quarantine Act 1908; or
(b) a Commission of inquiry within the
meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
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 records in the
care of the Archives (other than current Commonwealth records relating to the
administration of the Archives).
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.
open access period, in relation to a record,
has the meaning given by the following provisions:
(a) for a Cabinet
notebook—section 22A;
(b) for a record containing Census
information—section 22B;
(c) for any other
record—subsection (7) of this section.
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, or an object, in any
form (including any electronic form) that is, or has been, kept by reason of:
(a) any information or matter that it
contains or that can be obtained from it; or
(b) its connection with any event,
person, circumstance or thing.
Note: For the definition of document,
see section 2B of the Acts Interpretation Act 1901.
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, subject to
sections 22A and 22B, work out when a record is in the open access
period in accordance with the following table:
|
Open access period for
records
|
|
Item
|
If the record came into
existence in any of the following years (ending on 31 December):
|
the record is in the
open access period on and after the following day:
|
|
1
|
a year (the creation year) before 1980
|
1 January in the year that is 31 years after the
creation year.
Example: A record that came into existence in the year
1979 is in the open access period on and after 1 January 2010.
|
|
2
|
1980 or 1981
|
1 January 2011.
|
|
3
|
1982 or 1983
|
1 January 2012.
|
|
4
|
1984 or 1985
|
1 January 2013.
|
|
5
|
1986 or 1987
|
1 January 2014.
|
|
6
|
1988 or 1989
|
1 January 2015.
|
|
7
|
1990 or 1991
|
1 January 2016.
|
|
8
|
1992 or 1993
|
1 January 2017.
|
|
9
|
1994 or 1995
|
1 January 2018.
|
|
10
|
1996 or 1997
|
1 January 2019.
|
|
11
|
1998 or 1999
|
1 January 2020.
|
|
12
|
2000
|
1 January 2021.
|
|
13
|
a year (the creation year) after 2000
|
1 January in the year that is 21 years after the
creation year.
Example: A record that came into existence in the year
2001 is in the open access period on and after 1 January 2022.
|
Note: Cabinet notebooks and records containing
Census information 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.
3C
Director‑General may determine archival resources of the Commonwealth
(1) The Director‑General may, in writing,
determine that a specified Commonwealth record or other material is part of the
archival resources of the Commonwealth.
Note: The Director‑General may specify a record by
reference to a class of records (see subsection 33(3AB) of the Acts
Interpretation Act 1901).
(2) The Director‑General must not make a
determination under this section unless he or she is satisfied that the
specified Commonwealth record or other material is part of the archival
resources of the Commonwealth (within the meaning of subsection 3(2)).
(3) A determination under this section may be
set out in the same document as a permission or approval given under paragraph
24(2)(b) or a notice of disapproval given under paragraph 24(2)(c).
(4) A determination under this section is not
a legislative instrument.
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 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;
and
(b) to encourage and foster the
preservation of all other archival resources relating to Australia; and
(c) to promote, by providing advice
and other assistance to Commonwealth institutions, the creation, keeping and
management 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; and
(d) to determine the material that
constitutes the archival resources of the Commonwealth; and
(e) to have the care and management of
Commonwealth records, other than current Commonwealth records, that:
(i) are part of the
archival resources of the Commonwealth; or
(ii) ought to be examined
to determine whether they are part of those archival resources; or
(iii) are required to be
preserved (other than permanently preserved); and
(f) to seek to obtain, and to have
the care 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 care of the Archives; and
(g) with the approval of the Minister,
to accept and have the care 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 care
of the Archives in order to ensure its preservation or for any other reason;
and
(h) to encourage, facilitate,
publicise and sponsor the use of archival material; and
(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; and
(k) to conduct research, and provide
advice, in relation to the management and preservation of records and other
archival material; and
(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 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 care 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 care 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.
6A
Records that are not part of the archival resources of the Commonwealth
(1) Nothing in this Act requires the Archives
to accept the care of a Commonwealth record that has not been determined to be
part of the archival resources of the Commonwealth under section 3C.
(2) If:
(a) a Commonwealth institution has
transferred a Commonwealth record to the care of the Archives; and
(b) the record has not been determined
to be part of the archival resources of the Commonwealth under section 3C;
the Archives may:
(c) if another Commonwealth
institution has succeeded to the relevant functions of the institution—cause
the record to be transferred to the custody of that successor institution, but
only in accordance with arrangements agreed to by that successor institution; or
(d) otherwise—cause the record to be
transferred to the custody of the institution, but only in accordance with
arrangements agreed to by the institution.
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 Tribunal 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 etc.
(1) This section applies to:
(a) the records kept by a Royal
Commission, whether the inquiry commenced or was completed before or after the
commencement of this Part; and
(b) the records kept by a Commission
of inquiry.
(2) The Commonwealth is entitled to the
possession of records kept by a Royal Commission, or by a Commission of inquiry,
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 care of any such records except in accordance
with such a direction.
(4) A direction given by a Royal Commission,
or by a Commission of inquiry, 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:
(a) the Minister administering the Royal
Commissions Act 1902 is taken to be the responsible Minister in relation to
the records of a Royal Commission; and
(b) the Minister administering the Quarantine
Act 1908 is taken to be the responsible Minister in relation to the records
of the Commission of inquiry within the meaning of that Act; and
(c) the Minister administering the Offshore
Petroleum and Greenhouse Gas Storage Act 2006 is taken to be the
responsible Minister in relation to the records of a Commission of inquiry
within the meaning of that Act.
(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 this Act, work out
when a Cabinet notebook is in the open access period in
accordance with the following table:
|
Open access period for
Cabinet notebooks
|
|
Item
|
If the Cabinet notebook
came into existence in any of the following years (ending on
31 December):
|
the Cabinet notebook is
in the open access period on and after the following day:
|
|
1
|
a year (the creation
year) before 1960
|
1 January in the year
that is 51 years after the creation year.
Example: A Cabinet
notebook that came into existence in the year 1959 is in the open access
period on and after 1 January 2010.
|
|
2
|
1960, 1961 or 1962
|
1 January 2011.
|
|
3
|
1963, 1964 or 1965
|
1 January 2012.
|
|
4
|
1966, 1967 or 1968
|
1 January 2013.
|
|
5
|
1969, 1970 or 1971
|
1 January 2014.
|
|
6
|
1972, 1973 or 1974
|
1 January 2015.
|
|
7
|
1975, 1976 or 1977
|
1 January 2016.
|
|
8
|
1978, 1979 or 1980
|
1 January 2017.
|
|
9
|
1981, 1982 or 1983
|
1 January 2018.
|
|
10
|
1984, 1985 or 1986
|
1 January 2019.
|
|
11
|
1987, 1988 or 1989
|
1 January 2020.
|
|
12
|
1990
|
1 January 2021.
|
|
13
|
a year (the creation year) after 1990
|
1 January in the year that is 31 years after the
creation year.
Example: A Cabinet notebook that came into existence in
the year 1991 is in the open access period on and after 1 January 2022.
|
Note: Records that are not Cabinet notebooks have
different open access periods (see subsection 3(7) (general records) and
section 22B (records containing Census information)).
(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 transferred to the care of the
Archives by, 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 15 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 certain Commonwealth records to care of Archives
(1) This section applies to a Commonwealth
record that:
(a) is in the custody of a
Commonwealth institution other than the Archives; and
(b) has been determined to be part of
the archival resources of the Commonwealth under section 3C.
Note: In certain circumstances a Commonwealth
institution or Minister can exempt a record from this section (see
section 29).
(2) The person responsible for the custody of
the record must cause the record to be transferred to the care of the Archives
in accordance with arrangements approved by the Archives.
(3) The record must be transferred:
(a) if the record ceases to be a
current Commonwealth record—as soon as practicable after the record ceases to
be a current Commonwealth record; and
(b) in any event—within 15 years of
the record coming into existence.
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.
Note: In certain circumstances a Commonwealth
institution or Minister can exempt a record from this section (see
section 29).
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 care 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 care 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 care 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.
Note: Arrangements under section 64 for a
person (other than the Archives) to have custody of a Commonwealth record must
enable the Archives to meet its obligations under this subsection.
(4) Where:
(a) the Archives seeks access to a
Commonwealth record that is not in the care 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:
(a) the record is an exempt record for
the reason that it contains information or matter of a kind referred to in
paragraph 33(1)(a) or (b); and
(b) a security classification applies
to the record such that access by the Archives would not be appropriate.
(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:
(a) the record is an exempt record for
the reason that it contains information or matter of a kind referred to in
paragraph 33(1)(a) or (b); and
(b) a security classification applies
to the record such that access by the Archives would not be appropriate.
(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 must ensure that all
Commonwealth records transferred to its care from a Commonwealth institution
are made available, as reasonably required, for use by, or at the direction of:
(a) that institution; or
(b) a Commonwealth institution that
has succeeded to the relevant functions of that institution.
Note: Arrangements under section 64 for a
person (other than the Archives) to have custody of a Commonwealth record must
enable the Archives to meet its obligations under this subsection.
(2) A record that has been in existence for
more than 15 years must not be made available to a Commonwealth institution
under subsection (1) in a manner that involves its leaving the custody of
the person who has the custody of the record, 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
(1A) This section applies to a Commonwealth
record that:
(a) is in the open access period; and
(b) is in the care of the Archives or
in the custody of a Commonwealth institution; and
(c) is not an exempt record.
(1) Subject to this Part, the Archives must
cause the record to be made available for public access.
Note: Arrangements under section 64 for a
person (other than the Archives) to have custody of a Commonwealth record must
enable the Archives to meet its obligations under this subsection.
(2) If the record is in the custody of a
Commonwealth institution, the institution must make such arrangements with the
Archives as will enable the Archives to meet its obligations under
subsection (1) in relation to the record.
Note: If the record is material of the Archives, the
arrangements referred to in subsection (2) must be included in the
arrangements under section 64 for the Commonwealth institution to have
custody of the record.
(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:
(i) that was communicated
in confidence by, or on behalf of, a foreign government, an authority of a
foreign government or an international organisation (the foreign entity)
to the Government of the Commonwealth, to an authority of the Commonwealth or
to a person who received the communication on behalf of the Commonwealth or an
authority of the Commonwealth (the Commonwealth entity); and
(ii) which the foreign
entity advises the Commonwealth entity is still confidential; and
(iii) the confidentiality of
which it would be reasonable to maintain;
(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.
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 care of the 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
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.
(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.
46 Constitution
of Tribunal for proceedings about certain exempt records
(1) If an application is made to the Tribunal
for review of a decision refusing to grant access to a record in accordance
with an application under section 40, being a record that is:
(a) claimed to be an exempt record for
the reason that it contains information or matter of a kind referred to in
paragraph 33(1)(a) or (b); and
(b) not a record of the Australian
Security Intelligence Organisation;
then the Tribunal must be constituted in accordance with
subsection (2) for the purposes of any proceeding in relation to the
application.
Note: Section 21AB of the Administrative
Appeals Tribunal Act 1975 contains the requirements for constitution of the
Tribunal in proceedings about a record of the Australian Security Intelligence
Organisation that is claimed to be an exempt record for the reason that it
contains information or matter of a kind referred to in paragraph 33(1)(a) or
(b).
(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;”.
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.”.
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 decision given by the Archives is taken to
have been given by the Director‑General.
50A
Inspector‑General of Intelligence and Security must be requested to give
evidence in certain proceedings
(1) This section applies in any proceedings
before the Tribunal under this Act in relation to a record that is claimed to
be an exempt record for the reason that it contains information or matter of a
kind referred to in paragraph 33(1)(a) or (b).
(2) Before determining that the record is not
an exempt record, the Tribunal must request the Inspector‑General of
Intelligence and Security to appear personally and give evidence on:
(a) the damage that could reasonably
be expected to be caused to the security, defence or international relations of
the Commonwealth if the record were made available for public access; or
(b) whether it would be reasonable to
maintain the confidentiality of information or matter to which both of the
following apply by not making the record available for public access:
(i) the information or
matter was communicated in confidence by, or on behalf of, a foreign
government, an authority of a foreign government or an international
organisation (the foreign entity) to the Government of the
Commonwealth, to an authority of the Commonwealth or to a person who received
the communication on behalf of the Commonwealth or an authority of the
Commonwealth (the Commonwealth entity);
(ii) the foreign entity
advises the Commonwealth entity that the information or matter is still
confidential.
(3) Before determining that part of, or a
copy of part of, the record is to be made available for public access under
section 38, the Tribunal must request the Inspector‑General to appear
personally and give evidence on:
(a) whether making that part, or a
copy of that part, of the record available for public access could reasonably
be expected to cause damage to the security, defence or international relations
of the Commonwealth; or
(b) whether it would be reasonable to
maintain the confidentiality of information or matter to which both of the
following apply by not making that part, or a copy of that part, of the record
available for public access:
(i) the information or
matter was communicated in confidence by, or on behalf of, a foreign
government, an authority of a foreign government or an international
organisation (the foreign entity) to the Government of the
Commonwealth, to an authority of the Commonwealth or to a person who received
the communication on behalf of the Commonwealth or an authority of the
Commonwealth (the Commonwealth entity);
(ii) the foreign entity
advises the Commonwealth entity that the information or matter is still
confidential.
(4) Before hearing the evidence of the
Inspector‑General, the Tribunal must hear any evidence to be given or
submissions to be made by or on behalf of:
(a) the Archives; or
(b) the Commonwealth institution of
which the record is property.
(5) The Inspector‑General must comply with a
request under subsection (2) or (3) unless, in the opinion of the
Inspector‑General, the Inspector‑General is not appropriately qualified to give
evidence on the matters in relation to which the Inspector‑General has been
requested to give evidence.
(6) For the purposes of enabling the
Inspector‑General to comply with a request under subsection (2) or (3):
(a) the Tribunal must allow the
Inspector‑General to take possession of, and make copies of or take extracts
from, any record given to the Tribunal for the purposes of the proceeding; and
(b) the Inspector‑General may require
the production of the record that is claimed to be an exempt record for the
reason that it contains information or matter of a kind referred to in
paragraph 33(1)(a) or (b); and
(c) the Inspector‑General may require
the production of any Commonwealth record that relates to the record mentioned
in paragraph (b); and
(d) the Inspector‑General may make
copies of, or take extracts, from the records mentioned in paragraphs (b)
and (c); and
(e) after such period as is reasonably
necessary for the purposes of giving evidence to the Tribunal, the Inspector‑General
must:
(i) return the original of
any record to the Tribunal or to the entity that produced the record; and
(ii) destroy any copies of
or extracts taken from any record.
(7) The Inspector‑General must permit a
person who would be entitled to inspect a record mentioned in
paragraphs (6)(a) to (d) if it were not in the possession of the Inspector‑General
to inspect the record at all reasonable times as the person would be so
entitled.
(8) The Tribunal is not bound by any opinion
of the Inspector‑General expressed while giving evidence under this section.
(9) The Tribunal must allow the Inspector‑General
a period within which to consider the records mentioned in
paragraphs (6)(a) to (d) that is reasonable having regard to:
(a) the nature of the evidence that
the Inspector‑General has been requested to give; and
(b) the time required by the Inspector‑General
to perform the Inspector‑General’s other functions.
(10) The fact that a person is obliged to
produce a document under subsection (6) does not otherwise affect a claim
of legal professional privilege that anyone may make in relation to that
document.
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 determining whether the Tribunal is
satisfied that it is desirable to make an order or orders under subsection
35(2) of the Administrative Appeals Tribunal Act 1975 for the purposes
of proceedings in relation to an application under section 43, the
Tribunal must:
(a) have regard to:
(i) the necessity of
avoiding the disclosure to the applicant of matter contained in a record to
which the proceedings relate, being matter by reason of which the record is an
exempt record; and
(ii) the necessity of
avoiding the disclosure to the applicant of information of the kind referred to
in subsection 39(1); and
(b) where the proceedings relate to a
record that is claimed to be an exempt record for the reason that it contains
information or matter of a kind referred to in paragraph 33(1)(a) or (b)—give
particular weight to a submission made by the Archives that it is desirable to
make the order or orders under subsection 35(2) of the Administrative
Appeals Tribunal Act 1975 because the record contains information or matter
of that kind.
(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 paragraph (1)(a);
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 paragraph (1)(a).
53 Production
of exempt records
(1) Section 37 of the Administrative
Appeals Tribunal Act 1975 does not apply in relation to a record that is
claimed to be an exempt record, but in proceedings before the Tribunal in
relation to such a record, if the Tribunal is not satisfied, by evidence on
affidavit or otherwise, that the record is an exempt record, it may require the
record to be produced for inspection by members of the Tribunal only.
(1A) If, upon the inspection, the Tribunal is
satisfied that the record is an exempt record, the Tribunal must return the
record to the person by whom it was produced without permitting a person to
have access to the record, or disclosing the contents of the record to a
person, unless the person is:
(a) a member of the Tribunal as
constituted for the purposes of the proceeding; or
(b) 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; or
(c) in the circumstances permitted
under paragraph 50A(6)(a)—the Inspector‑General of Intelligence and Security.
(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 a person to have access to the record or disclosing
the contents of the record to a person, unless the person is:
(a) a member of the Tribunal as
constituted for the purposes of the proceeding; or
(b) 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; or
(c) in the circumstances permitted
under paragraph 50A(6)(a)—the Inspector‑General of Intelligence and Security.
(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.
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.
55A
Automatic stay of certain decisions on appeal
(1) This section applies if:
(a) a person applies, under
section 43, to the Tribunal for review of a decision refusing to make a
record that is claimed to be an exempt record available for public access; and
(b) the Tribunal decides that a person
may have access to the record, or part of the record; and
(c) the Archives institutes an appeal
to the Federal Court of Australia from the decision of the Tribunal.
(2) If this section applies to a decision of
the Tribunal, the operation of the decision is stayed by force of this section
from the time at which the appeal is instituted.
(3) If the Archives appeals to the Federal
Court of Australia from the decision of the Tribunal and the appeal in relation
to the decision is determined by the Federal Court of Australia, the stay
continues to have effect until the earlier of:
(a) the time at which the decision of
the Federal Court of Australia on the appeal takes effect; and
(b) the time otherwise determined by
the Federal Court of Australia.
(4) If the Archives appeals to the Federal
Court of Australia from the decision of the Tribunal and the appeal in relation
to the decision is determined by the Federal Magistrates Court, the stay
continues to have effect until the earlier of:
(a) the time at which the decision of
the Federal Magistrates Court on the appeal takes effect; and
(b) the time otherwise determined by
the Federal Magistrates Court.
(5) Nothing in this section affects the power
of the Federal Court of Australia or the Federal Magistrates Court to make
orders under section 44A of the Administrative Appeals Tribunal Act
1975 in relation to matters other than staying the decision of the
Tribunal.
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—Samples of material for the Archives
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 transferred to the care 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 transferred to the care 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 transferred to the care 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 transferred to the care 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, the Archives may,
if the Director‑General considers it appropriate to do so, make arrangements
with a person for records required to be transferred to the care of the
Archives, or for material of the Archives, to be kept in the custody of the
person.
(2) Such arrangements must:
(a) provide for the care of the
material to which the arrangements relate; and
(b) provide for the regular inspection
of that material by the Archives; and
(c) enable the Archives to meet its
obligations under subsections 29(3), 30(1) and 31(1) in respect of that
material; and
(d) require the person with the
custody of the records to transfer the custody of the records to the Archives
if the Director‑General so directs.
Note: Subsections 29(3), 30(1) and 31(1) deal with
the availability of records.
(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).
(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 care 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.