Archives (discretionary service charges) 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) Determination 2021 (the Determination) is to determine an amount or rate of charge for a discretionary service provided to 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 will 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, and receiving comments from all Commonwealth institutions would likely have little impact to the changes themselves. We further note that consultation was not required for the previous Archives (Discretionary Service Charges) Determination 2014. The charges are necessary to:
- reflect the breadth of discretionary services provided by the National Archives to Commonwealth institutions
- meet the rapidly increasing costs for the National Archives in providing these services.
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
Section 1 – Name of Determination
Section 1 of the Determination provides that the name of the instrument is the Archives
(Discretionary Service Charges) 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.
Section 5 – Schedules
Section 5 describes the effect of Schedule 1 to the Determination.
Section 6 – Charges for discretionary services
Section 6 of the Determination sets out the charges for discretionary services.
SCHEDULE 1 – Repeal of previous Determination
Schedule 1 repeals the Archives (Discretionary Service Charges) Determination 2014.
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) 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) Determination 2014 to set out updated charges for discretionary 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 a Commonwealth institution 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.
The new Determination would ensure that machinery updates to existing discretionary services charges, as well as charges for new types of discretionary services to Commonwealth institutions, are made by the most efficient regulatory means. It would also ensure these discretionary services can be provided and will be adequately funded. This is also the current means by which charges for discretionary services are made by the National Archives to Commonwealth institutions.
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.