Archives (Discretionary Service Charges) Determination 2021

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2021L00282 Not in force Legislative Instrument

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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. 

Overview

The Archives (Discretionary Service Charges) Determination 2021 was made under section 69A of the Archives Act 1983 and was enacted to update the charges for discretionary services provided by the National Archives of Australia to Commonwealth institutions. The determination addresses the need for revised service charges to reflect the growing costs associated with providing these services and ensures adequate funding for the provision of discretionary services. It was made by the National Archives of Australia in compliance with the Legislation Act 2003. The policy objective is to ensure that the National Archives can continue to provide necessary discretionary services to Commonwealth institutions in an efficient and sustainable manner. Consultation was deemed not appropriate or reasonably practicable for this minor and machinery nature instrument, which applies exclusively to Commonwealth institutions.

Scope and Application

The Archives (Discretionary Service Charges) Determination 2021 applies to Commonwealth institutions in Australia and sets forth the rates for discretionary services provided by the National Archives of Australia. It is made under the authority of section 69A of the Archives Act 1983, which allows the Director-General to impose charges for services that are not mandatory or necessary for the proper performance of the National Archives' functions. This determination specifically targets discretionary acts requested by Commonwealth institutions, excluding those mandated by law or essential for the National Archives' core operations. The Determination repeals the previous Archives (Discretionary Service Charges) Determination 2014 and commences on 1 April 2021. It is designed to ensure that the National Archives can adequately fund and continue to provide discretionary services to Commonwealth institutions. The legislative instrument is compatible with human rights, particularly the right to freedom of opinion and expression, as it only applies to Commonwealth institutions and does not unreasonably impede access to information for the general public.

Key Provisions

The Archives (Discretionary Service Charges) Determination 2021 (section 6) outlines the charges for discretionary services provided by the National Archives to Commonwealth institutions. These charges are set to reflect the breadth of services provided and to meet the increasing costs incurred by the National Archives in delivering these services. Section 69A of the Archives Act 1983 empowers the Director-General to establish these charges, which pertain to discretionary acts performed by the National Archives at the request of a Commonwealth institution, excluding those acts mandated by law or necessary for the proper performance of the Archives' functions. The Act imposes specific obligations on the National Archives and Commonwealth institutions. For the National Archives, the primary obligation is to establish and adhere to the charges specified in the Determination (section 6). It also requires the National Archives to ensure that these charges are transparent, reasonable, and necessary to fund the provision of discretionary services. Commonwealth institutions, on the other hand, must pay the specified charges for the discretionary services they receive, in accordance with the Determination. Both parties must comply with the fees set out in the Determination to ensure the continued provision and adequate funding of discretionary services. Failure to comply with the charges set out in the Determination can result in legal consequences. Although the explanatory statement does not specify detailed penalties, breaches of the Determination could lead to civil or administrative actions under the Archives Act 1983. Such actions might include fines or other financial penalties as deemed appropriate by the relevant authorities. While the exact penalties are not detailed in the explanatory statement, the seriousness of non-compliance could result in significant repercussions for both the National Archives and the Commonwealth institutions involved.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.