Archives (discretionary services charges-agency digitisation) determination 2021

EXPLANATORY STATEMENT
 

Issued by authority of the National Archives of Australia

in compliance with section 15J of the Legislation Act 2003

Purpose and operation of the Instrument

The purpose of the Archives (Discretionary Service Charges-Agency Digitisation) Determination 2021 (the Determination) is to determine an amount or rate of charge for a discretionary service provided to an Australian Government agency – as a Commonwealth institution – by the National Archives of Australia (the National Archives).

Section 69A of the Archives Act 1983 (the Act) enables the Director-General of the National Archives to make a charge for discretionary services that are provided to a Commonwealth institution. Discretionary services are defined in subsection 3(3A) of the Act as the doing of an act by the National Archives, being an act that the National Archives has power to do and that it does at the person’s request, other than an act that:

(a) this Act requires the National Archives to do; or

(b) it is necessary for the National Archives to do for the proper performance of its functions.

The Determination is a legislative instrument within the meaning of the Legislation Act 2003.

Consultation

Under subsection 17(1) of the Legislation Act 2003 consultation was not appropriate or reasonably practicable to undertake.

The Instrument is of a minor or machinery nature and only applies to Commonwealth institutions. It is also not considered reasonably practicable to consult Commonwealth institutions on these charges. These charges will apply to all Commonwealth institutions. While these institutions have been informed that the National Archives was undertaking a review of its fees and charges and that existing fees and charges would be increased in line with the Consumer Price Index, undertaking consultation with all Commonwealth institutions on these changes is not reasonably practicable within the meaning of subsection 17(1) of the Legislation Act 2003 given time and complexity considerations. Further, receiving and reviewing comments from all Commonwealth institutions would likely have little impact on the calculated charge amounts. The charges are necessary to:

• preserve original archival records by reducing the impact of handling
• protect nationally significant records from loss or alteration
• support the Australian Government’s digital transformation agenda by providing digital copies which can be shared and re-used
• ensure access to archival material can be provided in an efficient and timely manner
• meet the rapidly increasing costs for the National Archives in providing these services.

The charges will enable and support a move towards digital delivery of archival records in a manner that is sustainable for the National Archives today and into the future.

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) have advised that the proposal is unlikely to have a regulatory impact on business, individuals or community organisations. Therefore, the preparation of a Regulation Impact Statement is not required. The OBPR Ref ID is 43520.

Statement of Compatibility with Human Rights

A Statement of Compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is at Attachment B.

Attachment A

NOTES ON SECTIONS

PART 1 – Preliminary

Section 1 – Name of Determination

Section 1 of the Determination provides that the name of the instrument is the Archives (Discretionary Service Charges-Agency Digitisation) Determination 2021.

Section 2 – Commencement

Section 2 provides that the determination commences on 1 April 2021.

Section 3 – Authority

Section 3 of the Determination provides that the legislative instrument is made under section 69A of the Archives Act 1983.

Section 4 – Definitions

Section 4 of the Determination sets out the definitions used in the Determination. In particular, it defines different file sizes (small file, small-medium file, standard file, large file and very large file), different types of audiovisual records (motion picture film, motion picture film sound, soundtrack and video) and attributes and groupings of audiovisual records (audiovisual format, audiovisual title, mute and silent). Each of these are relevant to the rates of charge that apply in Section 6.

Section 5 – Schedules

Section 5 describes the effect of Schedule 1 to the Determination.

Section 6 – Charges for Agency Digitisation Service

Section 6 of the Determination sets out the charges for discretionary services. Charges will vary in relation to the digitisation of individual items, depending on the size of the relevant item (see rows 6 and 7).

SCHEDULE 1 – Repeal of previous Determinations

Schedule 1 repeals the Archives (Discretionary Service Charges – Agency Digitisation) Determination 2016.

Attachment B

STATEMENT OF COMPATBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Archives (Discretionary Service Charges – Agency Digitisation) Determination 2021

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The Determination  repeals and replaces the Archives (Discretionary Service Charges – Agency Digitisation) Determination 2016 to set out updated charges for agency digitization services provided by the National Archives to Commonwealth institutions.

The purpose of the Determination is to determine an amount or rate of charge for a discretionary service provided to an Australian Government agency – as a Commonwealth institution – by the National Archives.

Section 69A of the Act enables the Director-General of the National Archives to make a charge for discretionary services that are provided to a Commonwealth institution. Discretionary services are defined in subsection 3(3A) of the Act as the doing of an act by the National Archives, being an act that the National Archives has power to do and that it does at the person’s request, other than an act that:

(a) this Act requires the National Archives to do; or

(b) it is necessary for the National Archives to do for the proper performance of its functions.

The Determination is a legislative instrument within the meaning of the Legislation Act 2003.

They will extend the scope of the charges levied for services provided to agencies under the National Archives’ Agency Digitisation Service to enable the National Archives to charge for the digitisation of audio-visual (AV) records, photographs and other items. These activities are not presently covered in existing legislative instruments. They will furthermore make charges for digitisation services provided to agencies consistent with charges provided for the same services to the public.

Human rights implications

The new Legislative Instrument engages the right to freedom of opinion and expression, in Article 19(2) of the International Covenant on Civil and Political Rights, which includes the right to receive information. The right to freedom of opinion and expression is not absolute. Relevantly, Article 19(2) provides:

‘Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’

In General Comment No. 34 on Article 19 (CCPR/C/GC/34) the Human Rights Committee states at paragraph 19 that fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. The new Legislative Instrument is consistent with these requirements, as the fees apply to Commonwealth institutions only, rather than the general public. Any limitation on the right to information is a reasonable, necessary and proportionate means to fund discretionary services provided to Commonwealth institutions adequately, and by extension to provide manageable and sustainable access to Commonwealth records into the future.

These measures are not intended to prevent or limit access to Commonwealth records or be intrusive and do not disproportionately affect any particular group.

Conclusion

This Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.