Bills Digest no. 32 2008–09
Archives Amendment Bill 2008
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
introduced: 17 September 2008
Portfolio: Cabinet Secretary
On the day after the date
of the Royal Assent
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
- to amend the Archives Act 1983 (the Archives Act) to
reflect various recommendations in the Australian Law Reform
Commission s Report Australia
s Federal Record: A Review of Archives Act 1983 (ALRC 85)
which have not yet been implemented, and
- to make consequential amendments to the Copyright Act
1968 (the Copyright Act), the Freedom of Information Act
1982 (the FOI Act) and the Privacy Act 1988 (the
The term archives is defined in the Australian Records
Management Standard as those records that are appraised as having
continuing value .
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.
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 material.
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
then, the body responsible for Commonwealth archives has undergone
several changes of name and status:
- Archives Division, Commonwealth National Library (1940s
- Commonwealth Archives Office (1961 74)
- Australian Archives (1971 98)
- National Archives of Australia (NAA) (1998 ).
The various archives 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 departments.
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 2007, the NAA had an
average staffing level of 402, was storing 356 149 shelf metres of
material, and received 123 734 enquiries from the public.
The Archives 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.
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 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 Archives Act. The Australian Law Reform
Commission (ALRC) began this review in August 1996, and tabled ALRC
85 in Parliament in July 1998.
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. 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:
- the NAA be an independent statutory authority (implemented in
- there be more effective supervision by the NAA of disposal of
- the 15 existing categories under which records may be exempted
from public access should be reduced to nine
- 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 practicable
- 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
Archives Amendment Bill 2006 (Cth) (the 2006 Bill) which was
introduced in the Senate on 6 September 2006, sought to implement
the recommendations in ALRC 85, including:
- inserting a new objects clause
- inserting various definitions, including a new definition of
record , and
- imposing an obligation on Commonwealth institutions to transfer
to the care of the NAA records which have ceased to be current
Commonwealth records and have been designated as archival resources
of the Commonwealth.
Senator Murray (Australian Democrats) sought to make further
amendments to those provisions of the 2006 Bill which related to
the FOI Act. His purpose was to overcome the difficulty arising
from a judgment of the High Court in McKinnon
v Secretary, Department of Treasury, and to make other improvements
to the review jurisdiction of the Administrative Appeals Tribunal
recommended by the Australian Law Reform Commission and the
Administrative Review Council.
The Bill lapsed when Parliament was prorogued in October 2007.
Digest for the 2006 Bill provides background on archives and
much of the above background has been taken from that
The current Bill is in similar, but not identical terms, to the
lapsed 2006 Bill.
The NAA welcomed the introduction of the 2006 Bill as the
culmination of over ten years of effort.
The Australian Society of Archivists also appear to be broadly
supportive of the Bill.
There has been no political party commentary on the Bill. It
should be noted that one of the first initiatives of the new Rudd
Labor Government was to move the National Archives from the
oversight of the Department of Finance and Deregulation to the
Prime Minister s Department portfolio in May 2008. In August 2008
Senator, the Hon. John Faulkner, Cabinet Secretary and Special
Minister of State gave this as the reason:
In the new Federal Government, for the first
time, many integrity and governance functions are brought together
under a single Minister FOI, public service administration, codes
of conduct, the register for lobbyists, transparency,
accountability, electoral law, the guidelines and administration of
tax-payer funded entitlements, government advertising and the
This means that it is Senator Faulkner who at the time of
preparing this Digest, is the Minister responsible for the NAA.
At its meeting of 18 September 2008, the Selection of Bills
Committee deferred consideration of the Bill until its next
According to the Explanatory Memorandum the Bill is not expected
to have any financial impact on Commonwealth expenditure or
Amendments to the Archives Act
Items 1 40 of Schedule 1 to the Bill amend the
Item 1 inserts proposed section
2A which contains an objects clause. The proposed objects
of the Archives Act are:
- to provide for a National Archives of Australia which will be
- identifying the archival resources of the Commonwealth
- preserving those archival resources and making them publicly
- overseeing Commonwealth record-keeping by determining standards
and providing advice to Commonwealth institutions, and
- to impose record-keeping obligations in respect of Commonwealth
Item 2 inserts a new definition of
care in existing subsection 3(1) which
contains all the relevant definitions for the Archives Act. Under
the proposed definition, a record will be in the
care of the NAA if it is either in the
custody of the NAA or it is in the custody of a person in
accordance with existing section 64 of the Archives Act.
Item 3 of the Bill repeals the existing
definition of the term material of the
Archives from the definitions in subsection 3(1) of
the Archives Act. Item 3 then substitutes a new
definition so that material of the
Archives means records in the
care of the NAA, other than current
Commonwealth records relating to the administration of the NAA.
Item 4 also repeals a definition. In that case,
the existing definition of record is
amended to mean a document, or an object, in any form (including
any electronic form) that is, or has been, kept by reason of:
- any information or matter that it contains or that can be
obtained from it, or
- its connection with any event, person circumstance or
This is a very broad definition and would include such things as
a photograph, film, map, plan, model or painting. It can also
include a sound recording, coded storage device, magnetic tape or
disc, microform, and more modern technologies such as digital video
discs and compact discs.
Existing subsection 3(2) of the Archives Act provides that the
archival resources of the Commonwealth consist of such Commonwealth
records and other material as are of national significance or
public interest. Item 5 of the Bill inserts
proposed section 3C which empowers the
Director-General to determine that a specified Commonwealth record or
other material is part of the archival resources of the
Commonwealth under subsection 3(2) of the Archives Act. Such a
determination must be in writing, but is not a legislative
instrument: proposed subsection 3C(4). This means
that it will not be put before the Parliament and will not be
subject to disallowance.
Item 6 contains a transitional provision which
is consequential upon item 5. The effect of the transitional
provision is that those records which have been classified as
Retain as National Archives immediately before the commencement of
item 5, are taken to be part of the archival resources of the
Commonwealth under proposed section 3C.
Existing section 5 of the Archive Act is about the establishment
and functions of the NAA. Items 7 21 are minor
amendments to reflect, amongst other things, the NAA s status as an
executive agency, and to ensure that the functions of the NAA are
read cumulatively and not in the alternative.
Item 22 omits the term
custody from existing subsections 6(2)
and 6(3) of the Archives Act and substitutes the term
care . This amendment is consistent with
the proposed definition of care in
Item 23 inserts proposed section
6A into the Archives Act. Proposed subsection
6A(2) provides that where a Commonwealth institution has
transferred a Commonwealth record into the care of the NAA, but the
record is not the subject of a determination under proposed section
3C, then the NAA can transfer the record back to the institution or
to another institution which has taken over the functions of the
originating institution. In either case, the NAA must transfer the
record only in accordance with arrangements agreed to by the
institution: proposed paragraph 6A(2)(c) and
Item 24 provides that proposed
subsection 6A(2) of the Archives Act will apply to
Commonwealth records transferred to the care of the NAA before or
after the commencement of the item.
Items 25 and 26 are minor amendments to
substitute a reference to custody with a
reference to care . These amendments are
consistent with the proposed definition of
care in subsection 3(1).
Item 27 repeals existing section 27 and
substitutes proposed section 27 which deals with
the transfer of certain Commonwealth records to the care of the
NAA. Proposed subsection 27(1) applies to a
Commonwealth record that is in the custody of a Commonwealth
institution other than the NAA and has been determined to be part
of the archival resources of the Commonwealth under proposed
section 3C. The person responsible for the custody must transfer
the Commonwealth record to the care of the NAA in accordance with
arrangements approved by the NAA: proposed subsection
27(2). That transfer must occur:
- as soon as practicable after the record ceases to be a current
Commonwealth record: proposed paragraph 27(3)(a),
- within 25 years of the record coming into existence:
proposed paragraph 27(3)(b).
According to the Explanatory Memorandum, the requirement to
transfer as soon as practicable will allow the NAA to determine the
particular conservation requirements for the records before records
begin to deteriorate .
Item 33 repeals existing section 30 and
substitutes proposed section 30 which requires the
NAA to ensure that all Commonwealth records which are transferred
into its care are made available for use by, or at the direction
of, the originating institution or a Commonwealth institution that
has succeeded to the relevant functions of the originating
institution. However proposed subsection 30(2)
qualifies that availability so that if a record has been in
existence for more that 25 years, it must not leave the custody of
the person who has the custody of the record, except as necessary
for the proper conduct of the institution.
Existing subsection 3(7) of the Archives Act provides that a
record is in the open access period if a
period of 30 years has elapsed since the end of the year ending on
31 December in which the record came into existence. Item
34 repeals existing subsections 31(1) and (2) and
inserts proposed subsections 31(1A), (1) and (2)
which deal with Commonwealth records that are in the open access
period and in the care of the NAA or the custody of a Commonwealth
institution. In that case the NAA must make the record available
for public access if it is not an exempt record : proposed
subsection 31(1). However, if the record is in the custody
of a Commonwealth institution, then that institution must make
arrangements with the NAA which will allow the NAA to meet its
Item 36 repeals the existing heading to Part
VI, that is, Objects of Archival Significance , consistent with the
repeal of existing section 61 by item 37. The
reason for the repeal is that the expanded definition of
record and the insertion of
proposed section 3C will allow for the inclusion
of objects. Item 36 inserts a new heading to Part
VI, being Samples of material for the Archives .
Item 39 repeals existing subsections 64(1) and
(2) which relate to custody of material of the NAA other than by
the NAA. In his second reading speech for the current Bill, Senator
Faulkner has stated:
This Bill recognises the fact that there can be
compelling reasons why archival records should be retained by their
agency of origin, or in some other appropriate place. For
example, records may be created or accessed through particular
technologies not available at a central archives, or, similarly,
specialised skills may be required to retrieve, interpret or manage
data. For this reason, the Bill introduces the concept that
archival records can be considered to be in the care of the
Archives, and therefore subject to the provisions that apply to all
archival material, even when they are not in the physical custody
of the Archives.
It is proposed to insert new subsections 64(1)
and (2) which will allow the NAA to do
- make arrangements for records to be transferred to the care of
the NAA, or
- make arrangements for material of the NAA to be kept in the
custody of a person.
Proposed subsection 64(2) requires that those
- provide for the care of the material
- allow for the NAA to inspect the materials regularly
- enable the NAA to meets its other obligations under the
Archives Act and
- allow for the transfer of custody of the records to the NAA if
the Director-General so directs.
Items 41 71 amend the Copyright Act.
Item 41 replaces the reference to the Australian
Archives in subparagraph (a)(i) of the definition of
archives in section 10 of the Copyright
Act with a reference to the NAA. Item 42 inserts
or into the definition of archives so that the subparagraphs in the
definition are read in the alternative. Item 43
inserts proposed subparagraph (aa) into the
definition of archives so that the
definition includes material which is in the custody of a person
other than the NAA in accordance with the provisions of section 64
of the Archives Act.
Item 45 repeals existing paragraph 10(3)(b) and
replaces it with proposed paragraph 10(3)(b) which
contains a new description of the term body administering a library
or archives . The term will include both a person having custody of
the archives, and the body or person (including the Crown) who has
ultimate responsibility for the library or archives.
Item 48 inserts proposed subsection
10(3A) which provides that anything held in or forming
part of any archives according to
proposed subparagraph (aa) of the definition is
taken not to be held in or form part of the NAA.
Items 49 and 50 amend subsections 47(5) and (6)
respectively to update the name of the NAA and to reflect the
amendments to the Archives Act which provide that the NAA has
care of records.
Existing section 51AA of the Copyright Act provides that the
copyright in a work that is kept in the collection of the
Australian Archives, where it is open to public inspection, is not
infringed by the making or communication by, or on behalf of, the
officer in charge of the Archives:
- making a single reference copy of the work for supply to a
regional office of the Archives where a reference copy of the work
has not been previously supplied to that regional office
- making a single replacement copy of the work where a reference
copy of the work supplied to a regional office of the Archives is
lost, damaged or destroyed
- making a single replacement copy of a work for supply to the
central office of the Archives where a reference copy of the work
supplied to the central office of the Archives is lost, damaged or
Item 51 amends subsection 51AA(1) to omit the
reference to the Australian Archives and to insert a reference to
the updated definition of archives in the
Copyright Act. Items 54 55 and items 57
60 are all in the same terms, that is, the reference to
Archives is omitted and a reference to National Archives of
Australia is substituted. This is consistent with the amendment to
the definition which was made by item 41. Together
these amendments extend the application of the various copyright
exceptions that apply to libraries and archives to archival
material in bodies with whom the NAA has an arrangement for
retention of the records. In particular, copyright in a work which
is in the collection of the NAA or held by a person under a section
64 of the Archives Act arrangement and open to public inspection
will not be infringed by the making of a single working copy in the
circumstances outlined above.
Items 61 64 and items 70 71
correct the title of the NAA and reflect the amendments to the
Archives Act which provide that the NAA has
care of records.
Items 65 69 amend various sections in Division
5 of Part V of the Copyright Act which deals with offences and
summary proceedings. Each of the subsections which is to be amended
contains a defence for the NAA to offences arising out of breaches
of the Copyright Act. The amendments will extend the defences to a
person who has custody of the relevant material under an
arrangement made in accordance with section 64 of the Archives Act
as long as the action taken would also be lawful for the NAA.
Items 72 78 amend the Freedom of Information
Act (FOI Act).
Subsection 4(6) of the FOI Act deals with what happens to
requests for information after an agency is abolished. In
particular paragraph 4(6)(c) deals with circumstances where the
documents of the agency have been deposited with the Australian
Archives. Item 73 proposes to omit the phrase
deposited with the Australian Archives and substitute the phrase
transferred to the care (within the meaning of the Archives Act) of
the National Archives. This amendment corrects the title of the NAA
and is consistent with other proposed amendments in the Bill in
relation to the term care .
Items 74 78 amend existing subsections 13(1),
(2), (3) and (4) to omit references to documents being in the
custody of the Australian Archives and substitute references to
documents being in the care (within the
meaning of the Archives Act) of the NAA.
Items 79 82 amend the Privacy Act.
Item 79 amends the definition of
record in section 6 of the Privacy Act so
that the existing reference to custody of the Archives (as defined
in the Archives Act) is substituted with a reference to care (as
defined by the Archives Act) of the National Archives . This
amendment corrects the title of the NAA and is consistent with
other proposed amendments in the Bill in relation to the term
Existing section 6A of the Privacy Act relates to breaches of a
National Privacy Principle. Existing subsection 6A(3) provides that
it is not a breach of a National Privacy Principle if an
organisation discloses personal information in a record for the
purposes of enabling the NAA to decide whether to accept, or to
arrange, custody of the record. Existing section 6B of the Privacy
Act is in similar terms referring instead to breaches of approved
Item 80 amends existing subsections 6A(3) and
6B(3) of the Privacy Act so that the reference to the Archives to
deciding whether to accept, or to arrange, custody of a record is
substituted with a reference to the NAA deciding whether to accept,
or to arrange, care (as defined in the
Items 81 amend existing paragraph 10(4)(a) to
omit reference to records of personal information being in the
custody of the Australian Archives and
substitute references to those records being in the
care of the NAA.
. AS 4390, Part 1, Clause 4.5, quoted in
State Records NSW, Glossary of Recordkeeping Terms ,
accessed on 23 September 2008.
. Judith Ellis (ed), Keeping Archives,
Second Edition, Thorpe/Australian Society of Archivists,
Port Melbourne, 1993, p. 463. See also State Records NSW, ibid.
. 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 Archives, First Annual Report 1983 84,
pp. 15 16, and National Archives of Australia,
Annual Report 2006 07, Canberra, 2007, pp. 31 39.
. Hon. Peter McGauran, MP, Minister for the Arts,
National Archives Awarded Executive Agency Status , media
release, Canberra, 5 March 2001.
. Diana Streak, Archives welcomes getting into the
Act , Canberra Times, 7 September 2006, p. 6.
. The Hon. J. Faulkner,
Speech to Launch the Australian Law Reform Commission's Report on
Privacy, Press Release, 11 August 2008.
. Section 64
provides that where the Director-General considers it appropriate
to do so, the Archives may make arrangements with a person for
material of the Archives to be kept in the custody of that person.
In such circumstances the material is still in the
care of the Archives and is subject to
regular inspection by the Archives.
. The term
Director-General in defined in subsection
3(1) of the Archives Act as 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.
Roy Jordan and Paula Pyburne
24 September 2008
Bills Digest Service
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