Commonwealth Consolidated Acts Commonwealth Consolidated ActsAct No. 79 of 1983 as amended
This compilation was prepared on 16 October 2009
taking into account amendments up to Act No. 102 of 2009
The text of any of those
amendments not in force
on that date is appended in the Notes section
The operation of amendments that
have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of
Legislative Drafting and Publishing,
Attorney-General's Department,
Canberra
Contents
Part I--Preliminary 1
1............ Short title [see Note 1] ....................................................................... 1
2............ Commencement [see Note 1] .............................................................. 1
2A......... Objects of this Act ............................................................................. 1
3............ Interpretation ...................................................................................... 1
3A......... A company no longer established for a public purpose ..................... 7
3B......... Commonwealth-controlled companies or associations that are not authorities of the Commonwealth 7
3C......... Director‑General may determine archival resources of the Commonwealth 8
4............ Extension to Territories ...................................................................... 8
4A......... Application of the Criminal Code ...................................................... 9
Part II--Establishment, functions and powers of the National Archives of Australia 10
5............ Establishment and functions of National Archives of Australia ...... 10
6............ Powers of Archives .......................................................................... 11
6A......... Records that are not part of the archival resources of the Commonwealth 13
Part III--The Director-General and staff of the Archives 14
7............ Director-General ............................................................................... 14
8............ Delegation by Director-General ........................................................ 14
9............ Staff .................................................................................................. 14
Part IV--National Archives of Australia Advisory Council 15
10.......... National Archives of Australia Advisory Council ........................... 15
11.......... Functions of Council ........................................................................ 15
12.......... Chairman and Deputy Chairman of Council .................................... 16
13.......... Deputies of members ........................................................................ 16
14.......... Remuneration and allowances of members ....................................... 16
15.......... Termination of office of member ...................................................... 17
16.......... Resignation of member ..................................................................... 17
17.......... Meetings of the Council ................................................................... 17
Part V--Commonwealth records 19
Division 1--Preliminary 19
18.......... Records of the Parliament ................................................................. 19
19.......... Court records .................................................................................... 19
20.......... Regulations and arrangements relating to certain records ................. 19
21.......... Archives may be given custody of certain records ........................... 20
22.......... Records of Royal Commissions etc. ................................................. 20
22A....... Cabinet notebooks ............................................................................ 21
22B....... Census information ........................................................................... 22
23.......... Records of inter-governmental authorities ........................................ 22
Division 2--Dealings with Commonwealth records 23
24.......... Disposal, destruction etc. of Commonwealth records ...................... 23
25.......... Advice to Council on disposal practices .......................................... 24
26.......... Alteration of Commonwealth records .............................................. 25
27.......... Transfer of certain Commonwealth records to care of Archives ...... 25
28.......... Archives to have access to records ................................................... 26
28A....... Records of companies or associations that cease to be authorities of the Commonwealth 26
29.......... Exemption of certain records ............................................................ 26
30.......... Commonwealth records to be available to Commonwealth institutions 29
30A....... Non-disclosure of Census information ............................................. 29
Division 3--Access to Commonwealth records 31
31.......... Records in open access period to be publicly available .................... 31
32.......... Consultation with States .................................................................. 32
33.......... Exempt records ................................................................................. 32
35.......... Identification of exempt records ....................................................... 35
36.......... Forms of access ................................................................................ 36
37.......... Conditions in respect of proper care of records ............................... 37
38.......... Access to part of exempt record ....................................................... 37
39.......... Information as to existence of certain documents ............................. 37
40.......... Notification of decisions ................................................................... 38
Division 4--Review of decisions 41
42.......... Internal reconsideration of decisions ................................................ 41
43.......... Applications to Administrative Appeals Tribunal .......................... 41
44.......... Powers of Tribunal ........................................................................... 44
46.......... Constitution of Tribunal for proceedings about certain exempt records 44
48.......... Modification of section 42 of the Administrative Appeals Tribunal Act 1975 46
50.......... Parties ............................................................................................... 46
50A....... Inspector‑General of Intelligence and Security must be requested to give evidence in certain proceedings 46
51.......... Onus ................................................................................................. 49
52.......... Tribunal to ensure non-disclosure of certain matters ....................... 49
53.......... Production of exempt records ........................................................... 50
55.......... Complaints to Ombudsman .............................................................. 51
55A....... Automatic stay of certain decisions on appeal ................................. 52
Division 5--Miscellaneous 54
56.......... Arrangements for accelerated or special access ................................ 54
57.......... Protection against certain actions ..................................................... 55
58.......... Access to records apart from Act ..................................................... 55
59.......... Security classifications ..................................................................... 56
60.......... Transitional provisions relating to access ......................................... 56
Part VI--Samples of material for the Archives 57
62.......... Samples of material for Archives ...................................................... 57
Part VII--Care of material of the Archives 58
63.......... Location of material of the Archives ................................................ 58
64.......... Custody of material of the Archives other than by Archives .......... 58
Part VIII--Registers and guide relating to Archives 60
65.......... Australian National Register of Records .......................................... 60
66.......... Australian National Guide to Archival Material .............................. 60
67.......... Australian National Register of Research Involving Archives .......... 61
Part IX--Miscellaneous 62
68.......... Annual Report .................................................................................. 62
69.......... Certified copies of records ................................................................ 62
69A....... Charges for discretionary service for Commonwealth institutions .. 63
70.......... Transitional ....................................................................................... 63
71.......... Regulations ....................................................................................... 64
Notes 65
An Act relating to the preservation and use of archival resources, and for related purposes
Notes to
the
Archives Act 1983 Note 1 The Archives Act 1983 as shown in this compilation
comprises Act No. 79, 1983 amended as indicated in the Tables below. All relevant information pertaining to application, saving
or transitional provisions prior to 7 March 2000 is not included in this
compilation. For subsequent information see Table A. The Archives Act 1983 was modified by the Archives
(Records of the Parliament) Regulations (1995 No. 91) see Table B. Table of Acts
|
Act |
Number |
Date |
Date of commencement |
Application, saving or transitional provisions |
|
79, 1983 |
3 Nov 1983 |
6 June 1984 (see Gazette 1984, No. S206) |
|
|
|
165, 1984 |
25 Oct 1984 |
S. 3: (a) |
||
|
76, 1986 |
24 June 1986 |
S. 3: Royal Assent (b) |
||
|
Intelligence and Security (Consequential Amendments) Act 1986 |
102, 1986 |
17 Oct 1986 |
-- |
|
|
38, 1988 |
3 June 1988 |
S. 3: Royal Assent (c) |
||
|
A.C.T. Self-Government (Consequential Provisions) Act 1988 |
109, 1988 |
6 Dec 1988 |
S. 32 (in part): 11 May 1989 (see Gazette 1989, No. S164) (d) |
-- |
|
126, 1988 |
14 Dec 1988 |
Ss. 4, 5, 9-11, 21(2) and 22(1): 1 Jan 1989 (see Gazette 1988, No. S402) |
-- |
|
|
75, 1990 |
22 Oct 1990 |
S. 5: Royal Assent (e) |
-- |
|
|
80, 1990 |
23 Oct 1990 |
23 Oct 1990 |
-- |
|
|
180, 1991 |
25 Nov 1991 |
S. 116: 23 Dec 1991 (f) |
-- |
|
|
196, 1992 |
21 Dec 1992 |
Schedule (Part 1): 10 Mar 1993 (see Gazette 1993, No. GN17) (g) |
||
|
as amended by |
|
|
|
|
|
60, 1993 |
3 Nov 1993 |
10 Mar 1993 |
-- |
|
|
168, 1994 |
16 Dec 1994 |
-- |
||
|
Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994 |
33, 1994 |
15 Mar 1994 |
||
|
10, 1995 |
15 Mar 1995 |
Ss. 1 and 2: Royal Assent |
-- |
|
|
43, 1996 |
25 Oct 1996 |
Schedule 4 (item 10) and Schedule 5 (items 16-18): Royal Assent (k) |
-- |
|
|
189, 1997 |
7 Dec 1997 |
(l) |
S. 2 (am. by 145, 1999, Sch. 1 [item 2]) |
|
|
as amended by |
|
|
|
|
|
145, 1999 |
11 Nov 1999 |
(m) |
-- |
|
|
Public Employment (Consequential and Transitional) Amendment Act 1999 |
146, 1999 |
11 Nov 1999 |
Schedule 1 (items 100-103): 5 Dec 1999 (see Gazette 1999, No. S584) (n) |
-- |
|
Australian Security Intelligence Organisation Legislation Amendment Act 1999 |
161, 1999 |
10 Dec 1999 |
Schedule 3 (items 1, 17): (o) |
-- |
|
194, 1999 |
23 Dec 1999 |
Schedule 5: 23 Dec 1999 (p) |
-- |
|
|
9, 2000 |
7 Mar 2000 |
2 July 2000 (see Gazette 2000, No. S328) |
Sch. 3 (items 20, 34, 35) [see Table A] |
|
|
30, 2000 |
19 Apr 2000 |
19 Apr 2000 |
-- |
|
|
Communications and the Arts Legislation Amendment (Application of Criminal Code) Act 2001 |
5, 2001 |
20 Mar 2001 |
S. 4 and Schedule 1 (items 1-6): (q) |
S. 4 [see Table A] |
|
125, 2002 |
10 Dec 2002 |
Schedule 2 (item 1): 1 Jan 2003 |
-- |
|
|
135, 2003 |
17 Dec 2003 |
Schedule 2 (items 9-11): 17 June 2004 |
-- |
|
|
38, 2005 |
1 Apr 2005 |
Schedule 1 (items 203-205): 16 May 2005 |
Sch. 1 (item 205) [see Table A] |
|
|
Intelligence Services Legislation Amendment Act 2005 |
128, 2005 |
4 Nov 2005 |
Schedules 1-8: 2 Dec 2005 |
-- |
|
10, 2006 |
23 Mar 2006 |
Schedules 1 and 2: 20 April 2006 |
-- |
|
|
Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006 |
86, 2006 |
30 June 2006 |
Schedule 1 (item 2): 30 Dec 2006 (see s. 2(1)) |
-- |
|
158, 2007 |
24 Sept 2007 |
24 Sept 2007 |
-- |
|
|
113, 2008 |
31 Oct 2008 |
1 Nov 2008 |
Sch. 1 (items 6, 24) [see Table A] |
|
|
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 |
99, 2009 |
6 Oct 2009 |
Schedule 2: 7 Oct 2009 |
Sch. 2 (items |
|
Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment Act 2009 |
102, 2009 |
8 Oct 2009 |
Schedule 1 (items 62E-62H): 9 Oct 2009 |
-- |
(a) The Archives Act 1983 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1984, subsections 2(1) and (5) of which provide as follows:
(1) Subject to this section, this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent.
(5) The amendment of subsection 44(3) of the Archives Act 1983 made by this Act shall be deemed to have come into operation on 6 June 1984.
(b) The Archives Act 1983 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1986, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.
(c) The Archives Act 1983 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1988, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(d) The Archives Act 1983 was amended by section 32 only of the A.C.T. Self-Government (Consequential Provisions) Act 1988, subsection 2(3) of which provides as follows:
(3) The remaining provisions of this Act (including the amendments made by Schedule 5) commence on a day or days to be fixed by Proclamation.
(e) The Archives Act 1983 was amended by section 5 only of the Defence Legislation Amendment Act 1990, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(f) The Archives Act 1983 was amended by section 116 only of the Special Broadcasting Service Act 1991, subsection 2(1) of which provides as follows:
(1) Subject to subsection (2), this Act commences 28 days after the day on which it receives the Royal Assent.
(g) The Archives Act 1983 was amended by the Schedule (Parts 1 and 5) of the Qantas Sale Act 1992, subsections 2(2), (3)(a) and (c) of which provide as follows:
(2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
(3) A Proclamation may fix a day that is earlier than the day on which the Proclamation is published in the Gazette but only if:
(a) in the case of sections 30, 31, 35, 37, 39, 43 and 50 and Parts 1 and 2 of the Schedule--the day is not earlier than the substantial minority sale day; and
(c) in the case of sections 25, 36, 38, 44 and 51 and Parts 5, 6 and 7 of the Schedule--the day is not earlier than the 100% sale day.
(h) The Qantas Sale Act 1992 was amended by section 3 (item 17) only of the Qantas Sale Amendment Act 1994, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(i) The Archives Act 1983 was amended by sections 3-6 only of the Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994, subsection 2(1) of which provides as follows:
(1) Except for subsection 15(1), this Act commences on the day on which it receives the Royal Assent.
(j) The Archives Act 1983 was amended by subsection 3(c) and sections 6-8 only of the Archives Amendment Act 1995, subsection 2(2) of which provides as follows:
(2) Paragraph 3(c) and sections 6, 7 and 8 are taken to have commenced immediately after the commencement of the Witness Protection Act 1994.
The Witness Protection Act 1994 came into operation on 18 April 1995.
(k) The Archives Act 1983 was amended by Schedule 4 (item 10) and Schedule 5 (items 16-18) only of the Statute Law Revision Act 1996, subsection 2(1) of which provides as follows:
(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.
(l) Section 2 of the Parliamentary Service (Consequential Amendments) Act 1997 provides as follows:
2 This Act commences at the time when the Parliamentary Service Act 1999 commences.
The Parliamentary Service Act 1999 came into operation on the same day as the Public Service Act 1999, immediately after that Act commenced.
The Public Service Act 1999 came into operation on 5 December 1999 (see Gazette 1999, No. S584).
(m) Section 2 of the Parliamentary Service Act 1999 provides as follows:
2 This Act commences, or is taken to have commenced, on the same day as the Public Service Act 1999, immediately after the commencement of that Act.
The Public Service Act 1999 came into operation of 5 December 1999 (see Gazette 1999, No. S584).
(n) The Archives Act 1983 was amended by Schedule 1 (items 100-103) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:
(1) In this Act, commencing time means the time when the Public Service Act 1999 commences.
(2) Subject to this section, this Act commences at the commencing time.
(o) The Archives Act 1983 was amended by Schedule 3 (items 1 and 17) only of the Australian Security Intelligence Organisation Legislation Amendment Act 1999, subsection 2(2) of which provides as follows:
Schedule 3
(2) Subject to subsections (3) to (6), Schedule 3 commences immediately after the commencement of the other Schedules to this Act.
The other Schedules to this Act commenced on Royal Assent.
(p) The Archives Act 1983 was amended by Schedule 5 only of the Federal Magistrates (Consequential Amendments) Act 1999, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the commencement of the Federal Magistrates Act 1999.
(q) The Archives Act 1983 was amended by Schedule 1 (items 1-6) only of the Communications and the Arts Legislation Amendment (Application of Criminal Code) Act 2001, subsection 2(1)(a) of which provides as follows:
(1) Subject to this section, this Act commences at the latest of the following times:
(a) immediately after the commencement of item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000;
Item 15 commenced on 24 May 2001.
Table of Amendments
|
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted |
|
|
Provision affected |
How affected |
|
Part I |
|
|
ad. No. 113, 2008 |
|
|
am. No. 109, 1988; No. 80, 1990; No. 196, 1992; No. 33, 1994; No. 10, 1995; No. 189, 1997 (as am. by No. 145, 1999); No. 146, 1999; No. 30, 2000; No. 5, 2001; No. 135, 2003; No. 10, 2006; No. 158, 2007; No. 113, 2008; No. 102, 2009 |
|
|
Note to s. 3(7)..................... |
ad. No. 10, 2006 |
|
ad. No. 10, 1995 |
|
|
ad. No. 113, 2008 |
|
|
ad. No. 5, 2001 |
|
|
Part II |
|
|
Heading to Part II................. |
rs. No. 30, 2000 |
|
Heading to s. 5.................... |
am. No. 30, 2000 |
|
am. No. 30, 2000; No. 113, 2008 |
|
|
am. No. 109, 1988; No. 113, 2008 |
|
|
ad. No. 113, 2008 |
|
|
Part III |
|
|
am. No. 43, 1996; No. 146, 1999; No. 30, 2000 |
|
|
am. No. 43, 1996 |
|
|
am. No. 146, 1999 |
|
|
Part IV |
|
|
Heading to Part IV............... |
rs. No. 30, 2000 |
|
Heading to s. 10.................. |
rs. No. 30, 2000 |
|
am. No. 43, 1996; No. 30, 2000 |
|
|
am. No. 43, 1996 |
|
|
Part V |
|
|
Division 1 |
|
|
Heading to s. 22.................. |
am. No. 158, 2007 |
|
am. No. 158, 2007; No. 113, 2008; No. 102, 2009 |
|
|
ad. No. 33, 1994 |
|
|
ad. No. 30, 2000 |
|
|
|
rs. No. 10, 2006 |
|
am. No. 109, 1988 |
|
|
Division 2 |
|
|
am. No. 30, 2000; No. 5, 2001; No. 113, 2008 |
|
|
am. No. 76, 1986; No. 5, 2001 |
|
|
rs. No. 113, 2008 |
|
|
Note to s. 28........................ |
ad. No. 113, 2008 |
|
ad. No. 10, 1995 |
|
|
am. No. 102, 1986; No. 75, 1990; No. 10, 1995; No. 43, 1996; No. 161, 1999; No. 128, 2005; No. 113, 2008; No. 99, 2009 |
|
|
Note to s. 29(3)................... |
ad. No. 113, 2008 |
|
rs. No. 113, 2008 |
|
|
Heading to s. 30A............... |
am. No. 10, 2006 |
|
ad. No. 30, 2000 |
|
|
|
am. No. 10, 2006 |
|
Division 3 |
|
|
am. No. 113, 2008 |
|
|
am. No. 109, 1988 |
|
|
am. No. 109, 1988; No. 10, 1995; No. 43, 1996; No. 125, 2002; No. 86, 2006 |
|
|
am. No. 43, 1996; No. 146, 1999 |
|
|
|
rep. No. 99, 2009 |
|
am. No. 113, 2008 |
|
|
am. No. 109, 1988; No. 180, 1991; No. 43, 1996 |
|
|
am. No. 43, 1996 |
|
|
Division 4 |
|
|
rep. No. 99, 2009 |
|
|
am. No. 43, 1996 |
|
|
am. No. 165, 1984; No. 99, 2009 |
|
|
am. No. 43, 1996 |
|
|
|
rep. No. 99, 2009 |
|
Heading to s. 46.................. |
rs. No. 99, 2009 |
|
am. No. 43, 1996; No. 99, 2009 |
|
|
am. No. 10, 1995; No. 43, 1996; No. 9, 2000 |
|
|
|
rep. No. 99, 2009 |
|
am. No. 38, 2005 |
|
|
am. No. 43, 1996 |
|
|
|
rep. No. 99, 2009 |
|
rs. No. 99, 2009 |
|
|
S. 50A................................. |
ad. No. 99, 2009 |
|
am. No. 43, 1996; No. 99, 2009 |
|
|
am. No. 43, 1996; No. 194, 1999; No. 99, 2009 |
|
|
rep. No. 99, 2009 |
|
|
S. 55A................................. |
ad. No. 99, 2009 |
|
Division 5 |
|
|
am. No. 76, 1986; No. 43, 1996; No. 5, 2001 |
|
|
am. No. 38, 1988 |
|
|
am. No. 43, 1996 |
|
|
Part VI |
|
|
Heading to Part VI............... |
rs. No. 113, 2008 |
|
S. 61.................................... |
am. No. 43, 1996; No. 5, 2001 |
|
|
rep. No. 113, 2008 |
|
am. No. 126, 1988; No. 113, 2008 |
|
|
Part VII |
|
|
am. No. 113, 2008 |
|
|
Part VIII |
|
|
am. No. 38, 1988; No. 99, 2009 |
|
|
Part IX |
|
|
am. No. 43, 1996 |
|
|
am. No. 113, 2008 |
|
|
ad. No. 80, 1990 |
|
|
am. No. 165, 1984; No. 80, 1990 |
|
Table A
Application, saving or transitional provisions
Australian Federal Police Legislation Amendment Act 2000 (No. 9, 2000)
Schedule 3
20 Definition
In this Part:
commencing time means the time when this Part commences.
34 Warrants or writs etc. may continue to be executed
If, immediately before the commencing time, any warrant, writ, order, permission or other instrument (the authority) issued under a law of the Commonwealth, a State or a Territory could be executed by a person who was at that time a member, staff member or special member of the Australian Federal Police, the authority continues to be able to be executed at and after the commencing time by the person in his or her capacity as:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) an AFP employee; or
(d) a special member of the Australian Federal Police;
(all within the meaning of the Australian Federal Police Act 1979 as in force at and after the commencing time).
Note: A person who is a member or staff member of the Australian Federal Police immediately before the commencing time is taken to be engaged as an AFP employee. Similarly, a person who is a special member of the Australian Federal Police immediately before the commencing time is taken to be appointed as a special member. See item 2 of this Schedule.
35 Regulations dealing with matters of a transitional or saving nature
(1) The Governor-General may make regulations, not inconsistent with any other provision of this Schedule, prescribing matters of a transitional or saving nature in relation to the amendments made by Schedule 1 or 2.
(2) Regulations made under this item within one year after the commencement of this item may commence on a day earlier than the day on which they are made, but not earlier than the commencement of this item.
Communications and the Arts Legislation Amendment (Application of Criminal Code) Act 2001 (No. 5, 2001)
(1) Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
(2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.
Administrative Appeals Tribunal Amendment Act 2005 (No. 38, 2005)
Schedule 1
205 Application of amendments--section 48 of the Archives Act 1983
The amendments made by items 203 and 204 do not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.
Archives Amendment Act 2008 (No. 113, 2008)
Schedule 1
6 Transitional--section 3C of the Archives Act 1983
(1) This item applies to a Commonwealth record if:
(a) an arrangement by the Director‑General relating to the disposal or custody of Commonwealth records is in operation immediately before the commencement of this item; and
(b) the arrangement classified the record as "Retain as National Archives"; and
(c) the record is not covered by a determination made under subitem (3).
(2) The record is, at the commencement of this item, taken to be determined to be part of the archival resources of the Commonwealth under section 3C of the Archives Act 1983.
(3) The Director‑General may, by writing, determine that this item does not apply to a record.
(4) A determination made under subitem (3) is not a legislative instrument.
24 Application--subsection 6A(2) of the Archives Act 1983
Subsection 6A(2) of the Archives Act 1983, as inserted by this Schedule, applies to Commonwealth records transferred to the care of the Archives before or after the commencement of this item.
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (No. 99, 2009)
Schedule 2
19 Application provision--item 1
The amendments made by item 1 of this Schedule do not apply to a Commonwealth record if:
(a) the record is in the open access period; and
(b) a determination has been made in respect of the record under subsection 29(1) or (2) of the Archives Act 1983; and
(c) a certificate under section 34 of the Archives Act 1983 (as in force immediately before the commencement of this Schedule) is in force in respect of the record.
Note: A certificate ceases to be in force if it is revoked by force of subitem 20(2).
20 Application provision--items 2 to 16
(1) The amendments made by items 2 to 16 of this Schedule apply for the purposes of determining whether access, or an extension of partial access, to a record referred to in section 31 of the Archives Act 1983 will be given in accordance with an application made under section 40 of that Act and received by the Archives on or after the commencement of this Schedule.
(2) A certificate issued in relation to a Commonwealth record under section 34 of the Archives Act 1983 (as in force immediately before the commencement of this Schedule) is, by force of this subitem, revoked in relation to the record on and from the time at which the first application for access to the record under the Archives Act 1983 is made, on or after the commencement of this Schedule.
(3) To avoid doubt:
(a) subitem (2) does not affect anything done in relation to, or in reliance on, a certificate mentioned in subitem (2) before the commencement of this Schedule; and
(b) nothing prevents a person from applying, on and after the commencement of this Schedule, for access to a Commonwealth record under the Archives Act 1983 if:
(i) before the commencement of this Schedule, the person applied for access to the same record; and
(ii) the application was refused in reliance on a certificate mentioned in subitem (2).
21 Application provision--item 17
The amendment made by item 17 of this Schedule applies to a decision of the Tribunal made on or after the commencement of this Schedule.
22 Application provision--item 18
The amendment made by item 18 of this Schedule does not apply to a record, or a part of a record, if:
(a) the record is in the open access period; and
(b) one of the following applies:
(i) in relation to the record--a certificate issued under section 34 of the Archives Act 1983 (as in force immediately before the commencement of this Schedule) is in force in respect of the record;
(ii) in relation to the part of the record--the part of the record is identified in accordance with subsection 34(2) of that Act (as in force immediately before the commencement of this Schedule) in a certificate issued under section 34 of that Act (as in force immediately before the commencement of this Schedule).
Note: A certificate ceases to be in force if it is revoked by force of subitem 20(2).
Table B
Modifications
Archives (Records of the Parliament) Regulations (SR 1995 No. 91)
Schedule Modifications of the Act
(regulation 5)
1 New sections 23A and 23B
1>1.1 After section 23, insert in Division 2 of Part V:
23A Interpretation
In Divisions 2 and 3, unless the contrary intention appears:
Class A record means:
(a) the record of the proceedings of the Senate as recorded in the Journals of the Senate; or
(b) the record of the proceedings of the House of Representatives as constituted by the Votes and Proceedings of the House of Representatives; or
(c) a record that is:
(i) laid before, or tabled in; and
(ii) in the possession of;
the Senate or the House of Representatives; or
(d) a record:
(i) that is presented to a committee in camera or on a confidential or restricted basis; and
(ii) that is in the possession of the committee, the Senate or the House of Representatives; and
(iii) that the committee, the Senate or the House of Representatives respectively has not authorised to be published; or
(e) a record prepared by:
(i) an officer of a Parliamentary Department; or
(ii) a person employed by, or performing duties for, a Parliamentary Department;
that relates to a record presented to a committee and is in the possession of:
(iii) the committee; or
(iv) the Senate; or
(v) the House of Representatives; or
(vi) a Parliamentary Department.
Class B record means a record in the possession of the Senate, the House of Representatives or a Parliamentary Department that is not a Class A record.
committee means:
(a) a committee of the Parliament that consists of Senators and Members of the House of Representatives; or
(b) a committee of the Senate or of the House of Representatives.
disapproved practice, in relation to a Parliamentary Department, means an administrative practice of the Department of which the Archives has notified the Department in writing that it disapproves.
Head of the Department means:
(a) in the case of records that are in the possession of the Department of the Senate -- the Clerk of the Senate; and
(b) in the case of records that are in the possession of the Department of the House of Representatives -- the Clerk of the House of Representatives; and
(c) in the case of records that are in the possession of the Joint House Department -- the Secretary to the Joint House Department; and
(d) in the case of records that are in the possession of the Department of the Parliamentary Library -- the Parliamentary Librarian; and
(e) in the case of records that are in the possession of the Department of the Parliamentary Reporting Staff -- the Principal Parliamentary Reporter.
Parliamentary practice means:
(a) a normal administrative practice of a Parliamentary Department that is not a disapproved practice; or
(b) a practice required by, or to implement:
(i) a Standing Order of either House; or
(ii) a Sessional Order of either House; or
(iii) a Resolution adopted by either House; or
(iv) a ruling of the President or the Speaker; or
(c) a practice approved by the President or the Speaker.
President means:
(a) the President of the Senate; or
(b) if the Deputy President of the Senate and the Chairman of Committees is performing the duties of the President -- the Deputy President and Chairman of Committees; or
(c) if a person is deemed to continue to be the Presiding Officer of the Senate under section 3 or 6 of the Parliamentary Presiding Officers Act 1965 -- the person; or
(d) if a Senator is elected by the Senate to preside over the Senate in the absence of the President and the Chairman of Committees -- the Senator.
Presiding Officer means:
(a) in the case of records that are in the possession of:
(i) the Senate; or
(ii) a committee of the Senate; or
(iii) the Department of the Senate;
the President; and
(b) in the case of records that are in the possession of:
(i) the House of Representatives; or
(ii) a committee of the House of Representatives; or
(iii) the Department of the House of Representatives;
the Speaker; and
(c) in the case of records that are in the possession of:
(i) a committee of the Parliament that consists of Senators and Members; or
(ii) the Joint House Department; or
(iii) the Department of the Parliamentary Library; or
(iv) the Department of the Parliamentary Reporting Staff;
the President and the Speaker;
Speaker means:
(a) the Speaker of the House of Representatives; or
(b) if the Deputy Speaker of the House of Representatives is performing the duties of the Speaker -- the Deputy Speaker; or
(c) if a person is deemed to continue to be the Presiding Officer of the House of Representatives under section 3 or 6 of the Parliamentary Presiding Officers Act 1965 -- the person.
23B Application of the Act to records
(1) Subsection 24 (5) of the Act applies to Class A and Class B records.
(2) Subsections 33 (4), 33 (5), 35 (2), 35 (3), 35 (4), 36 (2) and 36 (3), paragraphs 36 (4) (b) and (c), subsections 36 (5) and 37 (2) and section 40 of the Act apply to Class B records.
2 Section 24 (Disposal, destruction, etc, of Commonwealth records)
2.1 Subsection 24 (1):
Omit 'Commonwealth', substitute 'Class A or Class B'.
2.2 Subsection 24 (2):
Omit the subsection, substitute:
(2) Subsection (1) does not apply to anything done in relation to a Class A record:
(a) in accordance with a law; or
(b) with the permission of:
(i) in the case of journals, records and documents laid before the Senate -- the Senate by resolution; or
(ii) in any other case -- the Presiding Officer; or
(c) in accordance with a Parliamentary practice; or
(d) to give the record to a committee for the purposes of the committee; or
(e) to give the record to the Head of the Department for the purposes of the Department; or
(f) if the record is not in the custody of a committee or a Department that is entitled to custody of the record -- to give the record to the committee or Department.
(2A) Subsection (1) does not apply to anything done in relation to a Class B record:
(a) in accordance with a law; or
(b) with the permission of the Archives; or
(c) in accordance with a Parliamentary practice; or
(d) if the record is not in the custody of a committee or a Department that is entitled to custody of the record -- to give the record to the committee or Department.
2.3 Subsection 24 (4):
Omit the subsection, substitute:
(4) This section does not authorise the Archives to permit the destruction or other disposal of a Class B record without the consent, in writing, of the Presiding Officer.
3 Section 25 (Advice to Council on disposal practices)
3.1 Subsection 25 (1):
Omit 'Commonwealth records' (wherever occurring), substitute 'Class B records'.
3.2 Paragraph 25 (1) (a):
Omit 'any particular Commonwealth institution', substitute 'the Presiding Officer'.
3.3 Subsection 25 (1):
Omit 'a Commonwealth institution' (wherever occurring), substitute 'the Presiding Officer'.
3.4 Subsection 25 (2):
Omit 'a Commonwealth institution', substitute 'the Presiding Officer'.
3.5 Subsection 25 (2):
Omit 'that institution', substitute 'the Presiding Officer'.
4 Section 26 (Alteration of Commonwealth records)
4.1 Subsection 26 (1):
Omit 'Commonwealth', substitute 'Class A or Class B'.
4.2 After subsection 26 (1), insert:
(1A) Subsection (1) does not apply to anything done in relation to a Class A record:
(a) in accordance with a law; or
(b) with the permission, in writing, of the Presiding Officer; or
(c) in the case of journals, records and documents laid before the Senate -- in accordance with a resolution of the Senate; or
(d) in accordance with a Parliamentary practice.
4.3 Subsection 26 (2):
After 'done', insert 'in relation to a Class B record'.
5 Section 27 (Transfer of Commonwealth records to Archives)
5.1 Omit the section, substitute:
27 Transfer of Class A and Class B records to the Archives
(1) The Presiding Officer may make an agreement, in writing, with the Director-General:
(a) to allow Class A records to be transferred to the custody of the Archives; and
(b) to require the Archives to hold the records under the arrangements specified in the agreement, being arrangements consistent with this Part.
(2) Subject to this Part, if the body holding a Class A record does not need it to be readily available for its purposes, the body may transfer the record to the custody of the Archives in accordance with the agreement.
(3) Subject to this Part, if the body holding a Class B record does not need it to be readily available for its purposes, the body must:
(a) lawfully destroy the record; or
(b) transfer the record to the custody of the Archives.
(4) Subject to this Part, if a Class B record has been in existence for more than 25 years, the body holding it must transfer it to the custody of the Archives as soon as practicable.
6 Section 28 (Archives to have access to records)
6.1 Omit the section, substitute:
28 Archives to have access to records
(1) Subject to this Part, the Archives is entitled to have access to a Class A record in the possession of the Senate, the House of Representatives or a Parliamentary Department:
(a) with the consent, in writing, of the Presiding Officer or the Head of the Department; and
(b) at a reasonable time; and
(c) in accordance with conditions that the Presiding Officer or the Head of the Department determines in writing.
(2) Subject to this Part, the Archives is entitled to have access at a reasonable time to a Class B record in the possession of the Senate, the House of Representatives or a Parliamentary Department.
7 Section 29 (Exemption of certain records)
7.1 Subsection 29 (1):
Omit the subsection, substitute:
(1) If:
(a) the Senate or the House of Representatives determines by resolution that a Class A record is:
(i) a record that is not to be transferred to the custody of the Archives; or
(ii) a record to which the Archives is not entitled to have access; or
(iii) a record to which the Archives is not entitled to have access unless the conditions that are specified in the resolution or determination are complied with; or
(b) the Presiding Officer makes a similar determination in writing, with the agreement of the Director-General, in relation to a Class B record;
the Archives must comply with the resolution or determination.
(1A) If the Archives seeks access to a Class B record that is not in the custody of the Archives, and a person responsible for the custody of the record considers that it may be appropriate for the Presiding Officer to make a determination in relation to the record, the person must:
(a) notify the Archives of his or her opinion; and
(b) notify the Presiding Officer to allow the Presiding Officer to consider whether a determination should be made.
(1B) If the person notifies the Archives under subsection (1A), the Archives is not entitled to access to the record until the earlier of:
(a) the end of a period of 1 month from the day on which the Archives is notified; or
(b) the day on which the notification is withdrawn.
7.2 Subsection 29 (3):
Omit the subsection, substitute:
(3) The Director-General may make an agreement, in writing, with the Presiding Officer to allow Class A and Class B records that are transferred to the custody of the Archives to be held by the Archives on the conditions specified in the agreement, being conditions consistent with this Part.
8 Section 30 (Commonwealth records to be available to Commonwealth institutions)
8.1 Subsection 30 (1):
Omit 'all Commonwealth records', substitute 'Class A and Class B records'.
8.2 Subsection 30 (1):
Omit 'a Commonwealth institution' (first occurring), substitute 'the Senate, the House of Representatives, a committee or a Parliamentary Department'.
8.3 Subsection 30 (1):
Omit 'that institution or a Commonwealth institution that has succeeded to the relevant functions of that institution', substitute 'the body from which it received the records'.
8.4 Subsection 30 (2):
Omit 'a Commonwealth institution', substitute 'the Senate, the House of Representatives, a committee or a Parliamentary Department'.
8.5 Subsection 30 (2):
Omit 'the Commonwealth institution', substitute 'the body from which it received the record'.
9 Section 31 (Records in open access period to be publicly available)
9.1 Subsection 31 (1):
Omit 'all Commonwealth', substitute 'Class B'.
9.2 Subsection 31 (1):
Omit 'a Commonwealth institution', substitute 'the Senate, the House of Representatives, a committee or a Parliamentary Department'.
9.3 Subsection 31 (2):
Omit 'A Commonwealth institution that has the custody of Commonwealth records in the open access period, other than exempt records,', substitute 'The Presiding Officer'.
9.4 Subsection 31 (2):
Omit 'those records', substitute 'Class B records'.
9.5 Subsection 31 (4):
Omit 'Commonwealth', substitute 'Class B'.
9.6 Add at the end:
(5) A Class A record, or a part of the record, may be made available for public access:
(a) with the permission of:
(i) in the case of a record laid before the Senate -- the Senate by resolution; or
(ii) in any other case -- the Presiding Officer; or
(b) in accordance with a Parliamentary practice.
10 Section 33 (Exempt records)
10.1 Omit 'Commonwealth record' (wherever occurring), substitute 'Class B record'.
10.2 Paragraph 33 (1) (b):
After 'the Government of the Commonwealth', insert ', to the Senate, to the House of Representatives, to a Parliamentary Department'.
10.3 After subsection 33 (1), insert:
(1A) A Class A record is an exempt record.
11 Section 35 (Identification of exempt records)
11.1 Subsection 35 (1):
Omit 'the responsible Minister or a person authorized by the responsible Minister', substitute 'the Presiding Officer'.
11.2 Subsection 35 (1):
Omit 'Commonwealth records' (first occurring), substitute 'Class B records'.
11.3 Subsection 35 (1):
Omit 'access in part to Commonwealth records', substitute 'access in part to Class B records'.
11.4 Subsection 35 (5):
Omit 'Commonwealth records', substitute 'Class B records'.
12 Section 36 (Forms of access)
12.1 Subsection 36 (1):
Omit 'a record', substitute 'a Class B record'.
12.2 Paragraph 36 (4) (a):
Omit 'another Commonwealth institution that has the custody of the record', substitute 'the Senate, the House of Representatives, a committee or a Parliamentary Department'.
12.3 Paragraph 36 (4) (d):
After 'the Commonwealth,', insert 'the Senate, the House of Representatives, a committee, a Parliamentary Department'.
13 Section 37 (Conditions in respect of proper care of records)
13.1 Subsection 37 (1):
Omit 'any record', substitute 'a Class B record'.
14 Section 38 (Access to part of exempt record)
14.1 Omit 'a record', substitute 'a Class B record'.
15 Section 39 (Information as to existence of certain documents)
15.1 Subsection 39 (1):
Omit 'a record', substitute 'a Class B record'.
15.2 Subsection 39 (1):
Omit 'Commonwealth record', substitute 'Class B record'.
15.3. Subsection 39 (2):
Omit 'a record', substitute 'a Class B record'.
15.4 Subsection 39 (2):
Omit 'Commonwealth', substitute 'Class B'.