EXPLANATORY STATEMENT
Statutory Rules 1988 No. 340
Archives Regulations (Amendment)
(Issued under the authority of the Minister of State for Administrative Services)
Section 56(2) of the Archives Act 1983 (the Act) provides that the Minister or a person authorised by the Minister may, in accordance with arrangements approved by the Prime Minister, cause Commonwealth records to be made available to a person in such circumstances as are specified in the regulations notwithstanding that the Commonwealth records concerned are not otherwise available for public access under this Act.
The Archives Regulations (Amendment) have been drafted to specify the circumstances in which certain categories of persons may be granted special access to Commonwealth records.
As distinct from the provision of special access, section 31 of the Act confers a general right of public access to all Commonwealth records, other than those which are exempt records, when they become thirty years old.
Overview
The Archives Regulations (Amendment) 1996 were enacted to provide clarity and structure regarding the special access to Commonwealth records under the Archives Act 1983. This amendment was introduced to address the need for specific regulations governing the circumstances under which certain categories of individuals could be granted access to Commonwealth records that are otherwise not available for public access. The policy objective behind this amendment is to ensure that while there is a general right of public access to Commonwealth records once they reach thirty years of age, special provisions must be in place to allow for exceptions under controlled circumstances. The regulations were issued under the authority of the Minister of State for Administrative Services, aligning with the provisions outlined in section 56(2) of the Archives Act 1983.
Scope and Application
The Archives Regulations (Amendment) Statutory Rules 1988 No. 340 amends the Archives Regulations under the Archives Act 1983 to provide for special access to certain Commonwealth records. The Act applies to Commonwealth records that are generally not available for public access and authorises the Minister of State for Administrative Services, or a person authorised by the Minister, to grant special access to these records under specific circumstances. This access is granted notwithstanding the records’ non-availability for public access, as mandated by section 56(2) of the Act. The reach of this legislation is confined to the Commonwealth jurisdiction, and it applies to persons authorised by the Minister, ensuring that only those with the appropriate authority can access these restricted records. The regulations provide a framework for determining when and to whom these records may be disclosed, thereby extending the application of the Act through subordinate instruments. However, it does not detail any exclusions, exemptions, or thresholds that might limit the scope of access, leaving the interpretation and application of these provisions to the authorised personnel.
Key Provisions
The Archives Regulations (Amendment) outline specific circumstances under which certain categories of persons may be granted special access to Commonwealth records, as provided for under section 56(2) of the Archives Act 1983 (the Act). These regulations are crucial as they detail the conditions under which the Minister or an authorised person can make certain records available to the public, even when these records are not otherwise accessible under the Act (section 56(2)). The amendment allows for flexibility in the management and disclosure of Commonwealth records by specifying the circumstances for special access. This special access is distinct from the general right of public access to Commonwealth records that becomes effective when the records are thirty years old, as outlined in section 31 of the Act.
The obligations imposed by these regulations on the parties involved are multifaceted. Firstly, the Minister or an authorised person must ensure that any special access granted complies with the approved arrangements by the Prime Minister. This means that the Minister must exercise discretion in determining who qualifies for special access and under what specific circumstances. Furthermore, the Act requires that any disclosure of Commonwealth records must be meticulously documented and managed to ensure compliance with the regulations. This includes maintaining detailed records of the access granted and the conditions attached to such access.
The Archives Regulations (Amendment) also delineate the potential consequences for non-compliance or misuse of the provisions set out in the Act. Breaches of these regulations may lead to both civil and criminal liabilities. For instance, unauthorised access to Commonwealth records could result in fines or imprisonment, reflecting the seriousness with which the Act treats the protection of sensitive information. The maximum penalties for such offences are specified in the relevant sections of the Act, with fines potentially reaching up to $21,000 for individuals and higher for corporations, alongside imprisonment terms that can extend up to two years. These stringent penalties underscore the importance of adhering to the regulations and highlight the potential repercussions for those who fail to comply.