Bills Digest no. 32 2008–09
Archives Amendment Bill 2008
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
Contact officer & copyright details
Passage history
Date introduced:
17 September 2008
House: Senate
Portfolio: Cabinet
Secretary
Commencement: On
the day after the date of the Royal Assent
Links: The 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 at http://www.comlaw.gov.au/.
- 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 Privacy Act).
The term ‘archives’ is 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.
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.[3] 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– ).[4]
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.[5]
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.[6]
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[7] 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.[8]
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.[9] 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 2001)
- there be more effective supervision by the NAA of disposal of non-archival
records
- the 15 existing categories under which records may be exempted from
public access should be reduced to nine[10]
- 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 time
- 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 of records.[11]
The 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,[12] 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.[13]
The Bill lapsed when Parliament was prorogued in October 2007. The Bills
Digest for the 2006 Bill provides background on archives and much
of the above background has been taken from that Digest.[14]
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.[15]
The Australian Society of Archivists also appear to be broadly supportive
of the Bill.[16]
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 National Archives.[17]
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 meeting.[18]
According to the Explanatory Memorandum the Bill is not expected to have
any financial impact on Commonwealth expenditure or revenue.[19]
Amendments
to the Archives Act
Items 1–40 of Schedule 1 to the Bill amend the Archives Act.
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 responsible
for:
- identifying the archival resources of the Commonwealth
- preserving those archival resources and making them publicly available,
and
- overseeing Commonwealth record-keeping by determining standards
and providing advice to Commonwealth institutions, and
- to impose record-keeping obligations in respect of Commonwealth records.
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.[20]
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 thing.
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.[21]
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[22] 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 subsection 3(1).
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 (d).
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), and
- 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’.[23]
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 access obligations.
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.[24]
It is proposed to insert new subsections 64(1) and (2)
which will allow the NAA to do the following:
- 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 arrangements must:
- 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 destroyed.
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.[25]
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 ‘care’.
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 privacy codes.
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 Archives Act).
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.
[1]. 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,
accessed on 23 September 2008.
[2]. Judith
Ellis (ed), Keeping Archives, Second Edition, Thorpe/Australian
Society of Archivists, Port Melbourne, 1993, p. 463. See also State
Records NSW, ibid.
[5]. 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.
[6]. Australian
Archives, First Annual Report 1983–84, pp. 15–16, and National Archives
of Australia, Annual
Report 2006–07, Canberra, 2007, pp. 31–39.
[8]. Hon.
Peter McGauran, MP, Minister for the Arts, ‘National Archives Awarded
Executive Agency Status’, media release, Canberra, 5 March 2001.
[15]. Diana
Streak, ‘Archives welcomes getting into the Act’, Canberra Times,
7 September 2006, p. 6.
[17]. The Hon. J. Faulkner, Speech
to Launch the Australian Law Reform Commission's Report on Privacy,
Press Release, 11 August 2008.
[20].
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.
[22]. 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
Parliamentary Library
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