2004-2005-2006 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Archives Amendment Bill 2006 No. , 2006 (Arts and Sport) A Bill for an Act to amend the Archives Act 1983, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 1 Schedule 1--Amendments 2 Archives Act 1983 2 Copyright Act 1968 9 Freedom of Information Act 1982 12 Privacy Act 1988 13 i Archives Amendment Bill 2006 No. , 2006 [Page Break] 1 and for related purposes 2 The Parliament of Australia enacts: 3 1 Short title 4 This Act may be cited as the Archives Amendment Act 2006. 5 2 Commencement 6 This Act commences on the day after it receives the Royal Assent. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 Archives Amendment Bill 2006 No. , 2006 1 [Page Break] 1 Schedule 1--Amendments 2 3 Archives Act 1983 4 1 After section 2 5 Insert: 6 2A Objects of this Act 7 The objects of this Act are: 8 (a) to provide for a National Archives of Australia, whose 9 functions include: 10 (i) identifying the archival resources of the 11 Commonwealth; and 12 (ii) preserving and making publicly available the archival 13 resources of the Commonwealth; and 14 (iii) overseeing Commonwealth record-keeping, by 15 determining standards and providing advice to 16 Commonwealth institutions; and 17 (b) to impose record-keeping obligations in respect of 18 Commonwealth records. 19 2 Subsection 3(1) 20 Insert: 21 care: a record is in the care of the Archives if: 22 (a) the record is in the custody of the Archives; or 23 (b) the record is in the custody of a person in accordance with 24 arrangements referred to in section 64. 25 3 Subsection 3(1) (definition of material of the Archives) 26 Repeal the definition, substitute: 27 material of the Archives means records in the care of the Archives 28 (other than current Commonwealth records relating to the 29 administration of the Archives). 30 4 Subsection 3(1) (definition of record) 31 2 Archives Amendment Bill 2006 No. , 2006 [Page Break] Repeal the definition, substitute: 1 record means a document, or an object, in any form (including any 2 electronic form) that is, or has been, kept by reason of: 3 (a) any information or matter that it contains or that can be 4 obtained from it; or 5 (b) its connection with any event, person, circumstance or thing. 6 Note: For the definition of document, see section 25 of the Acts 7 Interpretation Act 1901. 8 5 After section 3B 9 Insert: 10 3C Director-General may determine archival resources of the 11 Commonwealth 12 (1) The Director-General may, in writing, determine that a specified 13 Commonwealth record or other material is part of the archival 14 resources of the Commonwealth. 15 Note: The Director-General may specify records by reference to a class (see 16 subsection 46(3) of the Acts Interpretation Act 1901). 17 (2) The Director-General must not make a determination under this 18 section unless he or she is satisfied that the specified 19 Commonwealth record or other material is part of the archival 20 resources of the Commonwealth (within the meaning of subsection 21 3(2)). 22 (3) A determination under this section may be set out in the same 23 document as a permission or approval under paragraph 24(2)(b) or 24 a disapproval under paragraph 24(2)(c). 25 (4) A determination under this section is not a legislative instrument. 26 6 Transitional--section 3C of the Archives Act 1983 27 (1) If: 28 (a) an arrangement by the Director-General relating to the 29 disposal or custody of Commonwealth records is in operation 30 immediately before the commencement of this item; and 31 (b) the arrangement classified a record as "Retain as National 32 Archives"; 33 Archives Amendment Bill 2006 No. , 2006 3 [Page Break] the record is, at the commencement of this item, taken to be determined 1 to be part of the archival resources of the Commonwealth under 2 section 3C of the Archives Act 1983. 3 (2) The Director-General may, by writing, determine that subitem (1) does 4 not apply to an instrument. 5 (3) A determination under subitem (2) is not a legislative instrument. 6 7 Subsection 5(1) 7 Omit ", within the Department,". 8 8 At the end of paragraphs 5(2)(a) and (b) 9 Add "and". 10 9 Paragraph 5(2)(c) 11 Omit "keeping", substitute "creation, keeping and management". 12 10 At the end of paragraph 5(2)(c) 13 Add "and". 14 11 Paragraph 5(2)(d) 15 Omit "ascertain", substitute "determine". 16 12 At the end of paragraph 5(2)(d) 17 Add "and". 18 13 Paragraph 5(2)(e) 19 Omit "custody ", substitute "care". 20 14 At the end of subparagraph 5(2)(e)(i) 21 Add "or". 22 15 Subparagraph 5(2)(e)(ii) 23 Omit "ascertain", substitute "determine". 24 16 Subparagraph 5(2)(e)(iii) 25 Repeal the subparagraph, substitute: 26 (iii) are required to be preserved (other than permanently 27 preserved); and 28 4 Archives Amendment Bill 2006 No. , 2006 [Page Break] 17 Paragraph 5(2)(f) 1 Omit "custody" (first and third occurring), substitute "care". 2 18 At the end of paragraph 5(2)(f) 3 Add "and". 4 19 Paragraph 5(2)(g) 5 Omit "custody" (wherever occurring), substitute "care". 6 20 At the end of paragraphs 5(2)(g), (h), (j) and (k) 7 Add "and". 8 21 Subsection 5(3) 9 Omit "the Public Service Board or". 10 22 Subsections 6(2) and (3) 11 Omit "custody", substitute "care". 12 23 At the end of Part II 13 Add: 14 6A Records that are not part of the archival resources of the 15 Commonwealth 16 (1) Nothing in this Act requires the Archives to accept the care of a 17 Commonwealth record that has not been determined to be part of 18 the archival resources of the Commonwealth under section 3C. 19 (2) If: 20 (a) a Commonwealth institution has transferred a 21 Commonwealth record to the care of the Archives; and 22 (b) the record has not been determined to be part of the archival 23 resources of the Commonwealth under section 3C; 24 the Archives may: 25 (c) if another Commonwealth institution has succeeded to the 26 relevant functions of the institution--cause the record to be 27 transferred to the custody of that successor institution, but 28 only in accordance with arrangements agreed to by that 29 successor institution; or 30 Archives Amendment Bill 2006 No. , 2006 5 [Page Break] (d) otherwise--cause the record to be transferred to the custody 1 of the institution, but only in accordance with arrangements 2 agreed to by the institution. 3 24 Application--subsection 6A(2) of the Archives Act 1983 4 Subsection 6A(2) of the Archives Act 1983 applies to Commonwealth 5 records transferred to the care of the Archives before or after the 6 commencement of this item. 7 25 Subsection 22(3) 8 Omit "custody" (second occurring), substitute "care". 9 26 Subsection 24(4) 10 Omit "received into the custody of the Archives from", substitute 11 "transferred to the care of the Archives by". 12 27 Section 27 13 Repeal the section, substitute: 14 27 Transfer of certain Commonwealth records to care of Archives 15 (1) This section applies to a Commonwealth record that: 16 (a) is in the custody of a Commonwealth institution other than 17 the Archives; and 18 (b) has been determined to be part of the archival resources of 19 the Commonwealth under section 3C. 20 Note: In certain circumstances a Commonwealth institution or Minister can 21 exempt a record from this section (see section 29). 22 (2) The person responsible for the custody of the record must cause the 23 record to be transferred to the care of the Archives in accordance 24 with arrangements approved by the Archives. 25 (3) The record must be transferred: 26 (a) if the record ceases to be a current Commonwealth record-- 27 as soon as practicable after the record ceases to be a current 28 Commonwealth record; and 29 (b) in any event--within 25 years of the record coming into 30 existence. 31 28 At the end of section 28 32 6 Archives Amendment Bill 2006 No. , 2006 [Page Break] Add: 1 Note: In certain circumstances a Commonwealth institution or Minister can 2 exempt a record from this section (see section 29). 3 29 Paragraphs 29(1)(a) and (2)(a) 4 Omit "custody", substitute "care". 5 30 Subsection 29(3) 6 Omit "custody", substitute "care". 7 31 At the end of subsection 29(3) 8 Add: 9 Note: Arrangements under section 64 for a person (other than the Archives) 10 to have custody of a Commonwealth record must enable the Archives 11 to meet its obligations under this subsection. 12 32 Paragraph 29(4)(a) 13 Omit "custody", substitute "care". 14 33 Subsection 30(1) 15 Omit "shall ensure that all Commonwealth records received into its 16 custody from", substitute "must ensure that all Commonwealth records 17 transferred to its care by". 18 34 At the end of subsection 30(1) 19 Add: 20 Note: Arrangements under section 64 for a person (other than the Archives) 21 to have custody of a Commonwealth record must enable the Archives 22 to meet its obligations under this subsection. 23 35 Subsection 30(2) 24 Repeal the subsection, substitute: 25 (2) A record that has been in existence for more than 25 years must not 26 be made available to a Commonwealth institution under 27 subsection (1) in a manner that involves its leaving the custody of 28 the person who has the custody of the record, except as necessary 29 for the proper conduct of the business of the Commonwealth 30 institution. 31 36 Subsection 31(1) 32 Archives Amendment Bill 2006 No. , 2006 7 [Page Break] Omit "shall cause all Commonwealth records in the open access period 1 that are in the custody of the Archives or", substitute "must cause all 2 Commonwealth records in the open access period that are in the care of 3 the Archives or in the custody". 4 37 At the end of subsection 31(1) 5 Add: 6 Note: Arrangements under section 64 for a person (other than the Archives) 7 to have custody of a Commonwealth record must enable the Archives 8 to meet its obligations under this subsection. 9 38 Subsection 31(2) 10 Omit ", shall", substitute "or material of the Archives, must". 11 39 Subsection 35(2) 12 Omit "custody of", substitute "care of the". 13 40 Part VI (heading) 14 Repeal the heading, substitute: 15 Part VI--Samples of material for Archives 16 41 Section 61 17 Repeal the section. 18 42 Subsections 62(2), (3), (4) and (5) 19 Omit "delivered to the custody", substitute "transferred to the care". 20 43 Subsections 64(1) and (2) 21 Repeal the subsections, substitute: 22 (1) Subject to any other law of the Commonwealth and to the rights of 23 Commonwealth institutions, the Archives may, if the 24 Director-General considers it appropriate to do so, make 25 arrangements with a person for records required to be transferred to 26 the care of the Archives, or for material of the Archives, to be kept 27 in the custody of the person. 28 (2) Such arrangements must: 29 8 Archives Amendment Bill 2006 No. , 2006 [Page Break] (a) provide for the care of the material to which the 1 arrangements relate; and 2 (b) provide for the regular inspection of that material by the 3 Archives; and 4 (c) enable the Archives to meet its obligations under subsections 5 29(3), 30(1) and 31(1) in respect of that material; and 6 (d) require the person with the custody of the records to transfer 7 the custody of the records to the Archives if the 8 Director-General so directs. 9 Note: Subsections 29(3), 30(1) and 31(1) deal with the availability of 10 records. 11 44 Subsection 69(1) 12 Omit "custody", substitute "care". 13 Copyright Act 1968 14 45 Subsection 10(1) (subparagraph (a)(i) of the definition of 15 archives) 16 Repeal the subparagraph, substitute: 17 (i) the National Archives of Australia; or 18 46 Subsection 10(1) (at the end of subparagraph (a)(ii) of the 19 definition of archives) 20 Add "or". 21 47 Subsection 10(1) (after paragraph (a) of the definition of 22 archives) 23 Insert: 24 (aa) archival material in the custody of a person (other than the 25 National Archives of Australia) in accordance with an 26 arrangement referred to in section 64 of the Archives Act 27 1983; or 28 48 At the end of paragraph 10(3)(a) 29 Add "and". 30 49 Paragraph 10(3)(b) 31 Repeal the paragraph, substitute: 32 Archives Amendment Bill 2006 No. , 2006 9 [Page Break] (b) a reference to the body administering a library or archives is 1 to be read: 2 (i) in the case of archives covered by paragraph (aa) of the 3 definition of archives in subsection (1)--as a reference 4 to the person having the custody of the archives in 5 accordance with the relevant arrangement referred to in 6 that paragraph; or 7 (ii) otherwise--as a reference to the body (whether 8 incorporated or not), or the person (including the 9 Crown), having ultimate responsibility for the 10 administration of the library or archives; and 11 50 At the end of paragraphs 10(3)(c) to (m) 12 Add "and". 13 51 At the end of subparagraph 10(3)(ma)(i) 14 Add "or". 15 52 After subsection 10(3) 16 Insert: 17 (3A) For the purposes of this Act, something held in, or forming part of, 18 the collection of any archives covered by paragraph (aa) of the 19 definition of archives in subsection (1) is taken not to be held in, 20 and not to form part of, the collection of the National Archives of 21 Australia. 22 Note: Paragraph (aa) of the definition of archives covers archival material in 23 the custody of a person other than the National Archives of Australia 24 under an arrangement referred to in section 64 of the Archives Act 25 1983. 26 53 Subsection 47(5) 27 Omit "delivered, with the consent of the Director-General of the 28 Australian Archives, to the Australian Archives", substitute 29 "transferred, with the consent of the Director-General of the National 30 Archives of Australia, to the care (within the meaning of the Archives 31 Act 1983) of the National Archives of Australia". 32 54 Subsection 47(6) 33 10 Archives Amendment Bill 2006 No. , 2006 [Page Break] Omit "Australian Archives shall not consent to the delivery to the 1 Australian Archives", substitute "National Archives of Australia must 2 not consent to the transfer to the care of the National Archives of 3 Australia". 4 55 Subsection 51AA(1) 5 Omit "the Australian Archives", substitute "an archives covered by 6 subparagraph (a)(i) or paragraph (aa) of the definition of archives in 7 subsection 10(1)". 8 Note: The heading to section 51AA is altered by omitting "Australian Archives" and 9 substituting "care of National Archives of Australia". 10 56 Subsection 51AA(1) 11 Omit "Archives" (second occurring), substitute "archives". 12 57 Paragraph 51AA(1)(b) 13 Omit "Archives", substitute "National Archives of Australia". 14 58 Paragraphs 51AA(1)(c) and (d) 15 Omit "Archives" (first occurring), substitute "National Archives of 16 Australia". 17 59 Paragraph 51AA(1)(e) 18 Omit "Archives", substitute "National Archives of Australia". 19 60 Subsection 51AA(2) (definition of reference copy) 20 Omit "Australian Archives", substitute "National Archives of 21 Australia". 22 61 Subsection 51AA(2) (definition of working copy) 23 Omit "Australian Archives", substitute "National Archives of 24 Australia". 25 62 Subsection 70(5) 26 Omit "delivered, with the consent of the Director-General of the 27 Australian Archives, to the Australian Archives", substitute 28 "transferred, with the consent of the Director-General of the National 29 Archives of Australia, to the care (within the meaning of the Archives 30 Act 1983) of the National Archives of Australia". 31 Archives Amendment Bill 2006 No. , 2006 11 [Page Break] 63 Subsection 70(6) 1 Omit "Australian Archives shall not consent to the delivery to the 2 Australian Archives", substitute "National Archives of Australia must 3 not consent to the transfer to the care of the National Archives of 4 Australia". 5 64 Subsection 107(5) 6 Omit "delivered, with the consent of the Director-General of the 7 Australian Archives, to the Australian Archives", substitute 8 "transferred, with the consent of the Director-General of the National 9 Archives of Australia, to the care (within the meaning of the Archives 10 Act 1983) of the National Archives of Australia". 11 65 Subsection 107(6) 12 Omit "Australian Archives shall not consent to the delivery to the 13 Australian Archives", substitute "National Archives of Australia must 14 not consent to the transfer to the care of the National Archives of 15 Australia". 16 66 Paragraph 132(5EA)(b) 17 After "paragraph (a)", insert "or (aa)". 18 67 Paragraph 248H(3)(b) 19 Repeal the paragraph, substitute: 20 (b) transferred, with the consent of the Director-General of the 21 National Archives of Australia, to the care (within the 22 meaning of the Archives Act 1983) of the National Archives 23 of Australia; 24 68 Subsection 248H(4) 25 Omit "Australian Archives shall not consent to the delivery of a copy of 26 a sound recording to the Australian Archives", substitute "National 27 Archives of Australia must not consent to the transfer of the care of a 28 copy of a sound recording to the National Archives of Australia". 29 Freedom of Information Act 1982 30 69 Paragraph 4(6)(c) 31 12 Archives Amendment Bill 2006 No. , 2006 [Page Break] Omit "deposited with the Australian Archives", substitute "transferred 1 to the care (within the meaning of the Archives Act 1983) of the 2 National Archives of Australia". 3 70 Paragraph 13(1)(d) 4 Repeal the paragraph, substitute: 5 (d) in the care of the National Archives of Australia (otherwise 6 than as a document relating to the administration of the 7 National Archives of Australia); 8 71 Subsection 13(2) 9 Omit "placed in the custody of the Australian Archives", substitute 10 "transferred to the care (within the meaning of the Archives Act 1983) 11 of the National Archives of Australia". 12 72 Subsection 13(3) 13 Omit "custody of the Australian Archives", substitute "care (within the 14 meaning of the Archives Act 1983) of the National Archives of 15 Australia". 16 73 Subsection 13(4) 17 Omit "Australian Archives", substitute "National Archives of 18 Australia". 19 Privacy Act 1988 20 74 Subsection 6(1) (paragraph (fa) of the definition of record) 21 Omit "custody", substitute "care". 22 75 Subsections 6A(3) and 6B(3) 23 Omit "custody", substitute "care (as defined in that Act)". 24 76 Paragraph 10(4)(a) 25 Omit "Australian Archives) is in the custody of the Australian 26 Archives", substitute "National Archives of Australia) is in the care 27 (within the meaning of the Archives Act 1983) of the National Archives 28 of Australia". 29 77 Subsection 10(4) 30 Archives Amendment Bill 2006 No. , 2006 13 [Page Break] Omit "that custody", substitute "that care or custody". 1 14 Archives Amendment Bill 2006 No. , 2006