Commonwealth Numbered Acts

Archives Act 1983 No. 79 of 1983 - SECT 40

40. (1) This section applies in relation to an application to the Archives for
access, or for an extension of partial access, to a record referred to in
section 31, being an application-

   (a)  in writing;

   (b)  expressed to be made in accordance with this section;

   (c)  specifying an address in Australia at which notices under this Act may
        be sent to the person making the application; and

   (d)  providing such particulars, if any, concerning the record to which it
        relates as are contained in the Australian National Guide to Archival
        Material.

(2) The Archives shall give all reasonable assistance to persons to enable
them to make applications complying with paragraph (1) (d).

(3) Where an application to which this section applies is made, the Archives
shall take all reasonable steps to enable the applicant to be notified of a
decision on the application as soon as practicable but in any case not later
than 90 days after the day on which the application is received by the
Archives.

(4) The regulations may make provision that sub-section (3) is to have effect
as if a specified shorter period were substituted for the period of 90 days
specified in that sub-section.

(5) Where, in relation to an application, a decision is made relating to a
refusal to grant access to a record in accordance with the application, the
decision-maker shall cause the applicant to be given notice in writing of the
decision and the notice shall-

   (a)  state the findings on any material questions of fact, referring to the
        material on which those findings were based, and state the reasons for
        the decision;

   (b)  where the decision is a decision of the Archives-state the name and
        designation of the person making the decision; and

   (c)  give to the applicant appropriate information concerning-

        (i)    his rights with respect to a review of the decision;

        (ii)   his rights to make a complaint to the Ombudsman in relation to
               the decision; and

        (iii)  the procedure for the exercise of the rights referred to in
               sub-paragraphs (i) and (ii),

including (where applicable) particulars of the manner in which an application
for review under section 42 may be made.

(6) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does
not apply to a decision of the kind referred to in sub-section (5).

(7) A notice under sub-section (5) is not required to contain any matter that
is of such a nature that its inclusion in a record would cause that record to
be an exempt record under section 33.

(8) Where-

   (a)  an application to which this section applies has been made;

   (b)  the period of 90 days, or such other period as is applicable in
        accordance with regulations under sub-section (4), has elapsed since
        the day on which the application was received by the Archives; and

   (c)  notice of a decision on the application has not been received by the
        applicant,
the Archives shall, for the purpose of enabling an application to be made to
the Tribunal under section 43, be deemed to have made, on the last day of that
period, a decision refusing to grant access to the record on the ground that
the record is an exempt record.

(9) Where a complaint is made to the Ombudsman under the Ombudsman Act 1976
concerning failure to make and notify to the applicant a decision on an
application (whether the complaint was made before or after the expiration of
the period referred to in sub-section (8)), an application to the Tribunal
under section 43 of this Act by virtue of that sub-section shall not be made
before the Ombudsman has informed the applicant of the result of the complaint
in accordance with section 12 of the Ombudsman Act 1976.

(10) Where such a complaint is made before the expiration of the period
referred to in sub-section (8), the Ombudsman, after having investigated the
complaint, may, if he is of the opinion that there has been unreasonable delay
by the Archives in connection with the request, grant to the applicant a
certificate certifying that he is of that opinion, and, if the Ombudsman does
so, the Archives shall, for the purpose of enabling application to be made to
the Tribunal under section 43, be deemed to have made, on the day on which the
certificate is granted, a decision refusing to grant access to the record on
the ground that the record is an exempt record.

(11) Where, after an application has been made to the Tribunal by virtue of
sub-section (8) but before the Tribunal has finally dealt with the
application, a decision in the matter to which the application relates is
given by the Archives, being a decision that is not satisfactory to the
applicant, the Tribunal may, at the request of the applicant, treat the
proceedings as extending to a review of that decision in accordance with this
Part.

(12) Before dealing further with an application made to it by virtue of
sub-section (8), the Tribunal may, on the application of the Director-General,
allow further time to the Archives to deal with the application for access.