EXPLANATORY STATEMENT
Statutory Rules 1990 No.
Archives Regulations (Amendments)
(Issued under the authority of the Minister of State for Administrative Services)
Amendments to the Archives Act 1983 (the Act), which recently received Royal Assent (No. 80 of 1990), provide for charges for discretionary services in respect of Commonwealth institutions to be made and varied by determination of the Director-General of the Archives rather than by regulation. Charges for discretionary services provided to persons other than Commonwealth institutions continue to be made by regulation. However, the amendments to the Act rendered the current provisions in the Archives Regulations, governing charges for storage and related servicing of records, invalid.
Amended section 71 of the Act provides in part that the Governor-General may make regulations for the purposes of the Act, including regulations in relation to charges for the provision of prescribed discretionary services for persons other than Commonwealth institutions. The proposed amendments to the Archives Regulations (the Regulations) will ensure that, where appropriate, the charges for services to persons other than Commonwealth institutions may continue in force.
Regulation 1 is a formal provision.
Regulation 2 of the proposed Regulations omits a definition which is no longer required, and inserts one for ‘sentence’, which is a technical term in the context of the Regulations.
Regulation 3 omits regulation 8 (Charges), which is no longer appropriate following the amendments to the Act.
Regulation 4 inserts new regulation 10, which refers to the discretionary services which are prescribed for a person other than a Commonwealth institution, providing for services which may be provided under an arrangement between the Archives and such a person; and for particular services provided other than as part of such an arrangement, which are set out in a schedule.
Regulation 4 also inserts new regulation 11, which refers to the charges which are applicable in providing those services. It prescribes the charging rate if the services are provided under an arrangement, and refers to the charges set out in a schedule to the Regulations for services provided other than under an arrangement. Regulation 11 also grants the Director-General of the Australian Archives discretion to waive or reduce payments under certain circumstances, and includes a right of appeal to the Administrative Appeals Tribunal from an adverse exercise of that discretion.
Regulations 5 and 6 omit Parts 2 and 3 of Schedule 1 from the Regulations. These are replaced by a new Part 2, which combines the material in the previous Parts 2 and 3, and sets out the charges applicable in respect of discretionary services provided to a person other than a Commonwealth institution (where these are provided other than under an arrangement between the Archives and that person).
The Minute recommends that Regulations be made in the form proposed.
Overview
The Archives Regulations (Amendments) (1990) were enacted to address the invalidation of existing provisions governing charges for the storage and related servicing of records, following amendments to the Archives Act 1983. This Act, which received Royal Assent in 1990, introduced changes allowing charges for discretionary services in respect of Commonwealth institutions to be made and varied by the Director-General of the Archives, rather than by regulation. The Archives Regulations (Amendments) were issued under the authority of the Minister of State for Administrative Services and aim to ensure that the charges for services provided to persons other than Commonwealth institutions may continue in force. The proposed amendments to the Regulations include the omission of outdated definitions, the introduction of new definitions, the replacement of certain regulations, and the insertion of new regulations that specify the discretionary services and applicable charges for persons other than Commonwealth institutions, as well as the granting of discretion to the Director-General to waive or reduce payments under certain circumstances, with a right of appeal to the Administrative Appeals Tribunal from an adverse exercise of that discretion.
Scope and Application
The Archives Regulations (Amendments) Statutory Rules 1990 No. 34 amend the Archives Act 1983, affecting the framework for charges related to discretionary services provided by the Australian Archives. The Act applies to Commonwealth institutions and persons or entities other than Commonwealth institutions, specifically regarding charges for archival services. These amendments clarify the procedures for setting charges for services to Commonwealth institutions, which are now to be determined by the Director-General of the Archives, while charges for discretionary services to non-Commonwealth institutions continue to be regulated through regulation-making by the Governor-General. The amendments also address the invalidation of existing provisions governing charges for storage and related servicing of records, ensuring that the Archives Regulations are aligned with the legislative changes. The Regulations, which include provisions for new charges and discretionary services to non-Commonwealth institutions, as well as appeal mechanisms, extend the application of the Act to all persons and entities outside the Commonwealth sector that utilise archival services. These amendments apply nationally across Australia as they pertain to Commonwealth entities and institutions nationwide.
Key Provisions
The key operative sections of the proposed Archives Regulations (Amendments) are Regulation 2, which modifies the definitions within the Regulations, and Regulation 4, which introduces new regulations 10 and 11. Regulation 2 omits a definition that is no longer necessary and adds a new definition for the term "sentence," which is a technical term used in the Regulations (Reg. 2). Regulation 4 introduces new regulation 10, which concerns discretionary services provided to persons other than Commonwealth institutions, and regulation 11, which specifies the applicable charges for these services (Reg. 4). The Regulations also include a schedule detailing particular services and their corresponding charges (Schedule 1, Part 2).
These Regulations impose obligations on the parties involved in the provision and receipt of archival services. The Director-General of the Australian Archives is granted discretion to waive or reduce charges for discretionary services under certain circumstances, subject to an appeal process to the Administrative Appeals Tribunal (Reg. 4). Persons other than Commonwealth institutions must adhere to the prescribed charges outlined in the Regulations for services provided, unless they are part of a specific arrangement with the Archives (Reg. 10 and 11). The Archives themselves must ensure that the services provided comply with the stipulated charges and arrangements, and that any discretion exercised by the Director-General is fair and justifiable.
Breaches of the provisions outlined in these Regulations may lead to various consequences. For instance, if the Director-General exercises discretion to waive or reduce charges in an unreasonable manner, the affected party has the right to appeal to the Administrative Appeals Tribunal (Reg. 4). Additionally, failure to comply with the prescribed charges may result in disputes over billing and payment. Although the explanatory statement does not explicitly outline criminal or civil penalties, non-compliance could potentially lead to legal action or disputes that would need to be resolved in court. The exact nature and extent of the penalties would depend on the specific circumstances and applicable law.