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Bills Digest no. 58 2006–07
Archives Amendment Bill 2006
WARNING:
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 Bill.
CONTENTS
Passage History
Purpose
Background
Financial Implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Archives Amendment Bill 2006
Date introduced: 6 September 2006
House: Senate
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 Standard as:
Those records that are appraised as having continuing
value.(1)
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 as archives.
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.(2)
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:
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Archives Division, Commonwealth National Library (1940s–61)
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Commonwealth Archives Office (1961–74)
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Australian Archives (1971–98)
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National Archives of Australia (NAA) (1998– )(3)
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 Arts.(4)
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 public.(5)
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 departments.(6)
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 85).
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)
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the NAA be an independent statutory authority (implemented in 2001)
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there be more effective NAA supervision of disposal of non-archival
records
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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)
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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
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there should be a statutory obligation on all Commonwealth
agencies to make records available at the earliest practicable time
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the NAA should issue guidelines to encourage and facilitate the
early release of records, and
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the availability of records should be expanded, particularly through
new technologies and public promotion of the availability of records.(9)
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 disallowable.(16)
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 them.
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
have elapsed.
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.
Concluding comments
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.
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AS 4390, Part 1, Clause 4.5, quoted in State Records NSW, ‘Glossary
of Recordkeeping Terms’, http://www.records.nsw.gov.au/recordkeeping/glossary_of_recordkeeping_terms_a-c_4298.asp.
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Judith Ellis (ed), Keeping Archives, 2nd ed., Thorpe/Australian
Society of Archivists, Port Melbourne, 1993, p. 463. See also State
Records NSW, ibid.
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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.
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Hon. P. McGauran, MP, Minister for the Arts, National
Archives Awarded Executive Agency Status, media release, Canberra,
5 March 2001.
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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.
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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.
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Australian Law Reform Commission, Urgent action needed
to safeguard Australia's archives, ALRC warns, media release,
2 July 1998 .
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Australian Law Reform Commission, Media briefing paper,
2 July 1998.
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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).
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Diana Streak, ‘Archives
welcomes getting into the Act’, Canberra Times, 7 September
2006, p. 6.
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Australian Law Reform Commission, Australia’s
Federal Record: A Review of Archives Act 1983 (ALRC 85), 1998,
Recommendation 1, p. 45.
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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 activity’. ibid.,
Recommendation 24, p. 98.
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Explanatory
Memorandum, p. 3.
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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. 3.15).
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ibid.
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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).
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Australian Law Reform Commission, Australia’s
Federal Record, op. cit., p. 273.
Patrick O'Neil
27 November 2006
Bills Digest Service
Parliamentary Library
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 legal opinion.
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ISSN 1328-8091
© Commonwealth of Australia 2006
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Published by the Parliamentary Library, 2006.
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