Archives (Discretionary Service Charges) Determination 2023

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

Legislation au F2023L01245 In force Legislative Instrument

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Archives (discretionary service charges) determination 2023

 

 

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 2023 (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) the 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 disallowable legislative instrument within the meaning of the Legislation Act 2003 (the LA).

Consultation

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

The Determination 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 LA given time and complexity considerations. Further, receiving and reviewing comments from all Commonwealth institutions would likely have little impact to the changes themselves.

The Determination updates the amount or rate the National Archives can charge Commonwealth institutions for a range of discretionary services. A new costing model applies to charging, broadening the scope of discretionary services that can now be charged for beyond services related to storage and records management. Charges can now be applied for the provision to Commonwealth institutions of certification and copying services; materials testing; professional services such as training; and for a range of access-related services.

The revised charges are necessary to:

  • reflect the breadth of discretionary services provided by the National Archives to Commonwealth institutions
  • 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

Regulation Impact Statement

Following submission of a Regulation Impact Statement Preliminary Assessment, the Office of Impact Analysis has 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.

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

This section provides for the Determination to be cited as  the Archives (Discretionary Service Charges) Determination 2023 (the Determination).

Section 2 – Commencement

This section provides  for the Determination to commence on 11 September 2023.

Section 3 – Authority

This section identifies the provision of the Archives Act 1983 (the Act) that authorises the making of the Determination, namely section 69A of the Act.

Section 4 – Definitions

This section sets out the definitions for various terms used in the Determination. These definitions are relevant to the rates of charge that apply in Section 6.

Section 5 – Schedules

This section describes the effect of Schedule 1 to the Determination, which is to repeal the existing determinations which set out the current amount or rate of charge that can be applied by the National Archives for discretionary services provided to Commonwealth institutions. This includes the repeal of the Archives (Discretionary Service Charges) Determination 2021 (which sets out existing rates for charging for storage services) and the Archives (Discretionary Service Charges – Agency Digitisation) Determinaiton 2021 (which sets out existing rates for charging for digitisation services)

Section 6 – Charges for discretionary services

This section sets out the amount or rate of charge the National Archives may charge Commonwealth institutions for the provision of a range of discretionary services.

 

SCHEDULE 1 – Repeal of previous Determination

Schedule 1 repeals both the Archives (Discretionary Service Charges) Determination 2021 and the Archives (Discretionary Service Charges – Agency Digitisation) Determination 2021.

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 2023

This Determination 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 Determination

The Determination repeals and replaces both the Archives (Discretionary Service Charges) Determination 2021 and the Archives (Discretionary Service Charges – Agency Digitisation) Determination 2021 to set 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 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) the 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 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 ensures these discretionary services can be provided and will be adequately resourced. The revised approach to charging is consistent with the current means by which charges for discretionary services are made by the National Archives to Commonwealth institutions.


Human rights implications

The new Determination 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 Determination is consistent with these requirements, as the fees apply to Commonwealth institutions only, rather than the general public. The National Archives considers that 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 Determination 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 2023 was enacted to update the rates of charges levied by the National Archives of Australia for discretionary services provided to Commonwealth institutions. This Determination was introduced to address the need for revised charges that reflect the broader scope of discretionary services now covered, which extends beyond traditional storage and records management to include certification, copying, materials testing, professional services like training, and various access-related services. The Determination was made under the authority of the Archives Act 1983, specifically section 69A, which empowers the Director-General of the National Archives to set charges for discretionary services. The policy objective is to ensure these services are adequately resourced and provided efficiently while supporting the Australian Government’s digital transformation agenda and preserving original archival records. The Determination was made by the National Archives in compliance with the Legislation Act 2003 and is a disallowable legislative instrument. It is compatible with human rights as it ensures that any limitations on the right to information are reasonable, necessary, and proportionate.

Scope and Application

The Archives (Discretionary Service Charges) Determination 2023 applies to Commonwealth institutions, which are Australian Government agencies, and governs the discretionary service charges set by the National Archives of Australia for services provided to these entities. The Determination is applicable on a Commonwealth level and is designed to ensure the efficient and adequate resourcing of discretionary services offered by the National Archives. The services covered under the Determination include certification, copying, materials testing, professional services, and access-related services, which are not mandated by the Archives Act 1983 and do not pertain to the core functions of the National Archives. The new Determination repeals the previous Archives (Discretionary Service Charges) Determination 2021 and the Archives (Discretionary Service Charges – Agency Digitisation) Determination 2021, updating the charges to reflect the expanded scope of services and rising costs. The Determination is consistent with human rights obligations, particularly the right to freedom of opinion and expression, by ensuring that fees do not unreasonably impede access to information, while adequately funding the services provided to Commonwealth institutions. Exclusions from the Determination include services that are required by the Archives Act 1983 or are necessary for the proper performance of the National Archives’ functions. The Determination does not extend to the general public or any non-Commonwealth entities. Additionally, the Determination acknowledges that while consultation with all Commonwealth institutions was deemed not reasonably practicable, these institutions have been informed of the changes and the rationale behind them. The revised charges aim to preserve original archival records, protect significant records, support digital transformation, and ensure efficient and timely access to archival materials.

Key Provisions

The Archives (Discretionary Service Charges) Determination 2023 sets out the rates of charge that the National Archives of Australia can apply to discretionary services provided to Commonwealth institutions (Section 6). Discretionary services, as defined in section 3(3A) of the Archives Act 1983, include acts performed by the National Archives at the request of a Commonwealth institution, which are neither required by the Act nor necessary for the National Archives to perform its functions. This Determination replaces the Archives (Discretionary Service Charges) Determination 2021 and the Archives (Discretionary Service Charges – Agency Digitisation) Determination 2021, and it introduces a broader range of services for which charges can be applied, including certification, copying, materials testing, professional services such as training, and various access-related services (Section 6). The Determination imposes certain obligations on the National Archives to ensure that the charges set out in Section 6 are applied correctly and transparently to Commonwealth institutions. It also requires the National Archives to maintain records of services provided and charges applied, as well as to provide necessary documentation and justification for any changes to the rates of charge in the future. The National Archives must ensure that the fees are reasonable, necessary, and proportionate, and that they do not unduly impede access to Commonwealth records (Section 6). There are no specific offences or penalties outlined in the Determination itself. However, the Determination is a legislative instrument within the meaning of the Legislation Act 2003, and any failure to comply with the requirements of the Determination could potentially result in civil or criminal consequences under the relevant Acts. For instance, non-compliance with the Archives Act 1983 or the Legislation Act 2003 could result in penalties such as fines or imprisonment, depending on the severity and circumstances of the breach. The maximum penalties for offences under the Archives Act 1983 can be found in section 283, which provides for fines of up to 50 penalty units ($11,150 as of 2023) for certain offences, and section 284, which provides for imprisonment for up to two years for more serious offences. Additionally, any failure to comply with the requirements of the Legislation Act 2003 could result in penalties as outlined in sections 126 to 129 of that Act.

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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.