Bills Digest no. 58 2006–07
Archives Amendment Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Archives Amendment Bill
Date introduced: 6 September 2006
Portfolio: Arts and Sport
Commencement: The day after Royal Assent.
To update the Archives Act
1983 according to the 1998 recommendations of the Australian
Law Reform Commission.
Archives are defined in the Australian Records Management
Those records that are appraised as having
The term archives has traditionally been used to describe
records no longer required for current use which have been selected
for permanent preservation, that is, the permanent records of an
organisation or person. It is important to note that most records
will not end up as archives in this sense: it has been said that
only 3 per cent of government records will end up being preserved
Other uses for the word archives refer to the building or place
where archival material is kept, and to the organisation (or part
of an organisation) responsible for appraising, acquiring,
preserving and making available archival
The task of preserving the permanently valuable records of
Australia s federal government took some time to find a home.
Records of the First World War were collected by what is now the
Australian War Memorial, and a Public Archives Bill was considered
by Cabinet in 1927. However it was only in 1942 that Australia s
participation in the Second World War prompted steps towards the
creation of a more general system, with the setting up of the War
Archives Committee to deal with records of the war. In 1946, the
task was expanded to include the preservation of all Commonwealth
archives, and a fledgling archives organisation was established.
Since then, the body responsible for Commonwealth archives has
undergone several changes of name and status:
Archives Division, Commonwealth National Library (1940s 61)
Commonwealth Archives Office (1961 74)
Australian Archives (1971 98)
National Archives of Australia (NAA) (1998
The NAA became an executive agency in 2001, reporting directly
to the federal Minister for the Arts, rather than to the Secretary
of the Department of Communications, Information Technology and the
In 1984, the Australian Archives had a staff of 400, was storing
367,521 shelf metres of permanent and temporary material, and
received 3,446 enquiries from the public. In 2005, the NAA had an
average staffing level of 447, was storing 357,569 shelf metres of
material, and received 120,237 enquiries from the
The various archival organisations of the federal government
operated without legislative authority until 1983, with the system
running on conventions and contacts which enabled the archives to
obtain and preserve records from other government
The Archives Act 1983 ( the Act ) established the
Australian Archives as a statutory body. Amongst other things, it
set out procedures for the preservation or destruction of
Commonwealth records, for public access to records after 30 years,
and for administrative review of decisions about access.
In April 1996, motivated especially by changes in community
views on privacy and access to information, as well as the
proliferation of electronic record-keeping, Australian Archives
initiated a review of the Act. The Australian Law Reform Commission
(ALRC) began this review in August 1996, and its report was tabled
in parliament in July 1998: Australia
s Federal Record: A Review of Archives Act 1983 (ALRC
The report found that recordkeeping in many Commonwealth
agencies was in a parlous state that could only be overcome if the
NAA were allowed to adopt a pro-active policy stance, and that
there was a need for mandatory recordkeeping standards to be
implemented by Commonwealth agencies.(7) One of the main
problems facing archival organisations today is the predominance of
electronic records, and the need to be involved in the
design of electronic record-keeping systems if there is to
be any realistic hope of continuing access to the records contained
in those systems.
The report also recommended that:(8)
the NAA be an independent statutory authority (implemented in
there be more effective NAA supervision of disposal of
the 15 existing categories under which records may be
exempted from public access should be reduced to nine (this
recommendation is not effected in the Bill)
there should be a legislative direction that records more than
30 years old are to be made available to the public unless there
are compelling reasons for withholding them
there should be a statutory obligation on all
Commonwealth agencies to make records available at the earliest
the NAA should issue guidelines to encourage and facilitate the
early release of records, and
the availability of records should be expanded, particularly
through new technologies and public promotion of the availability
The NAA has welcomed the introduction of this Bill as the
culmination of over ten years of effort.(10)
There has been no political party commentary on the Bill.
All the amendments to existing Acts are contained in Schedule 1
of the Bill. The main amendments are as follows.
An objects clause is added, as recommended by the ALRC
(new section 2A). This gives the National Archives
the functions of identifying, preserving and making accessible the
Commonwealth s archival material and overseeing Commonwealth
record-keeping through standards and advice. This clause is less
detailed than the one recommended by the ALRC, which included
aspects such as the evaluation of records, availability of records
unless there were compelling grounds against their disclosure, and
provision of access to records earlier than prescribed by the
minimum statutory obligations.(11)
A new concept is introduced of records being in the
care of the Archives, whether they are in the
custody of the Archives or in someone else s custody by arrangement
with the Archives (sub-section 3(1) and others).
It is already possible under section 64 of the Act for archives to
be in the custody of someone other than the NAA, but the change
means that such archives are just as much subject to the rest of
the Act as archives in the custody of the NAA. This should improve
the ability of the public to access and use these materials.
There is a new definition of record (sub-section
3(1)). The new definition states that a record is a
document kept for the information it contains or for its connection
with any event, person, circumstance or thing. The current
references to the different formats that a record may take
are deleted. A new definition was recommended by the
ALRC,(12) and the definition in the Bill is said to
conform to the Australian and International recordkeeping
standard.(13) However, the definition in the Bill looks
somewhat broader than the international standard, which refers
specifically to records as being kept in pursuance of legal
obligations or in the transaction of business .(14) Note
that there is already a definition of the word record in the
Acts Interpretation Act 1901, which simply states that a
record includes information stored or recorded by means of a
computer (section 25); this does not conflict with the proposed
definition in the Bill.
The Director-General of the NAA is given the power to determine
if specified records are part of the archival resources of the
Commonwealth [that is, of permanent value] (new section
3C). The Explanatory Memorandum states that this will
provide certainty for agencies about what must be retained and what
can be destroyed .(15) Because of the administrative
nature of these determinations, they are declared not to be
legislative instruments and are therefore not
The NAA is given authority to transfer temporary records back to
the institution responsible for the records (new section
6A). This will enable the NAA to relieve itself of
temporary records that it may have accepted in the past in the
interests of assessing them for possible permanent preservation, or
because it was able to do so. Storage of temporary records will in
future be the responsibility of the institutions that create
The current requirement to transfer records to the NAA is
amended to apply only to records determined to be of permanent
value (substituted section 27). These records are
to be transferred to the care of the Archives as soon as
practicable, and in any event within 25 years a tightening of the
current provisions, which apply as soon as possible after 25 years
The amendments to the Copyright Act 1968, the
Freedom of Information Act 1982 and the Privacy Act
1988 introduce into those Acts the new concept of the care of
archives by the NAA and the change of name of the NAA. The
amendments to the Copyright Act also extend to organisations that
hold records the same rights to copy those records as are extended
to the NAA by current section 51AA of the Copyright Act.
One part of the current Act that is not being amended is Part
VIII, which deals with finding aids the tools that enable users to
locate material relevant to their research. The ALRC had
recommended that sections 65 67, which prescribe the registers to
be kept by the NAA, be replaced by a more general provision
requiring the NAA to create adequate finding aids in appropriate
formats and to promote their availability. (17) Sections
65 66 refer to registers by names that are no longer used, and the
functions of which are fulfilled by the single RecordSearch
database. Section 67 requires the NAA to offer a register of
research use of archives. Although such a register might be useful
for researchers, this provision has never been put into practice,
and given the present-day concerns for privacy, it is unlikely that
it will be. Parliament might consider whether these three sections
should be replaced along the lines suggested by the ALRC.
AS 4390, Part 1, Clause 4.5, quoted in State Records NSW,
Glossary of Recordkeeping Terms ,
Judith Ellis (ed), Keeping Archives, 2nd ed.,
Thorpe/Australian Society of Archivists, Port Melbourne, 1993, p.
463. See also State Records NSW,
Sen. R. Alston,
Name change for Archives, media release, Canberra, 27
February 1998. The Archives Act 1983 was amended to
reflect this name-change by the Census Information Legislation
Amendment Act 2000, Schedule 2.
Hon. P. McGauran, MP, Minister for the Arts, National
Archives Awarded Executive Agency Status, media release,
Canberra, 5 March 2001.
Australian Archives, First Annual Report 1983 84, pp.
15 and 16.
National Archives of Australia,
Annual Reports 2004 05, Canberra, 2005, pp. 19 and 79.
Hilary Golder, Documenting a Nation. Australian Archives:
the First Fifty Years, Australian Archives with AGPS Press,
Canberra, 1994, p. 43. An Archives Bill had been introduced in the
Senate in 1978, but did not proceed.
Australian Law Reform Commission, Urgent action needed
to safeguard Australia's archives, ALRC warns, media
release, 2 July 1998 .
Australian Law Reform Commission, Media briefing
paper, 2 July 1998.
It could be noted here, by way of example, that the NAA has
completed the digitising of every military service record from the
First World War (Diana Streak,
Memories replace treasures , Canberra Times, 28
October 2006, p. 6), and that the number of digitised pages
available on the RecordSearch
database has passed 9 million (NAA
media release, 25 January 2006).
Archives welcomes getting into the Act , Canberra
Times, 7 September 2006, p. 6.
Australian Law Reform Commission,
Australia s Federal Record: A Review of Archives Act 1983
(ALRC 85), 1998, Recommendation 1, p. 45.
The ALRC s suggested definition was: recorded information, in
any form, including data in computer systems, created or received
or maintained by an organisation or person in the transaction of
business or the conduct of affairs and kept as evidence of such
ibid., Recommendation 24, p. 98.
Explanatory Memorandum, p. 3.
The Australian and International Standard AS ISO 15489.1 2002
defines records as information created, received, and maintained as
evidence and information by an organization or person, in pursuance
of legal obligations or in the transaction of business (p. 3, para.
Legislative instruments are required to be tabled by the
Legislative Instruments Act 2003, and are subject to
parliamentary disallowance. Determinations under the new section 3C
are exempted from this procedure by new subsection 3C(4).
Australian Law Reform Commission,
Australia s Federal Record, op. cit., p. 273.
27 November 2006
Bills Digest Service
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Parliamentary Library, nor do they constitute professional
Staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
© Commonwealth of Australia 2006
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
Published by the Parliamentary Library, 2006.
Back to top