A charge under paragraph 36(2)(c) will typically be levied where an audiovisual record is fragile or can only be played on equipment which is now obsolete, and needs to be transferred to another format before its content can be accessed by a member of the public. The cost of transferring the format of audiovisual records is relatively high. When there is no charge levied for this service there are no signals to an individual to limit their request to records of highest priority to them. This results in a high level of resources being used and imposes delays in processing time across the range of requesting clients. While the arrangement to charge for providing copies under paragraph 36(2)(b) may be wide enough to capture making audiovisual copies on a new format of records to enable access, the addition of a reference to paragraph 36(2)(c) to regulation 11 provides a more certain basis for charging for such activities.

 

A charge under paragraph 36(2)(d) will typically be levied where a person requests access in the form of a written transcript of a sound recording held by the Archives.

 

Details of the Archives' charging regime for public access are contained in 'Copying charges--Fact sheet 51' on the Archives' website. Access to these records through the inspection of the original record in Archives' Reading Rooms (under paragraph 36(2)(a)) remains free of charge.

 

The amending Regulations also repeal paragraph 11(1)(b) of the Principal Regulations. Paragraph 11(1)(b) provided the basis for charging for copies of the Australian National Guide to Archival Material under subsection 66(6) of the Act. The Archives no longer publishes the Guide as a physical publication and details of the records that were formerly contained in the Guide are now contained in an online database which is available to the public free of charge. Paragraph 11(1)(b) is therefore redundant and appropriate for repeal.

 

Consultation

 

The National Archives of Australia was consulted in the making of the Regulations and agrees with them. Broader consultation on the changes was not required because they are consistent with the Archives' policy on charging for access to copies of records on a cost recovery basis. Further, charges being levied for access to records under paragraphs 36(2)(c) and (d) of the Act is explicitly envisaged in those paragraphs. The amending Regulations bring the charging arrangements for access under these paragraphs into line with the arrangements for providing access under paragraph 36(2)(b).

 

The Office of Best Practice Regulation (OBPR) examined the proposal and advised a Regulation Impact Statement was not required (OBPR reference number: 21702).

 

Other Details

 

Details of the amending Regulations are at Attachment A. A Statement of Compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is at Attachment B.

 

The amending Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

                                                                 

 

ATTACHMENT A

 

Details of the Archives Amendment (Charges) Regulations 2017

 

Clause 1 - Name of Regulations

 

This clause provides that the title of the Regulations is the Archives Amendment (Charges) Regulations 2017.

 

Clause 2 - Commencement

 

This clause provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislation.

 

Clause 3 - Authority

 

This clause provides that the Archives Amendment (Charges) Regulations 2017 are made under the Archives Act 1983.

 

Clause 4 - Schedules

 

This clause provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

Clause 1 - Amendments

 

Item 1 - subregulation 11(1)

 

This item repeals subregulation 11(1) of the Archives Regulations and replace it with a new subregulation 11(1). The effect of the new subregulation 11(1), in conjunction with subregulation 11(2), is to give the National Archives of Australia a power to charge for access to records under paragraphs 36(2)(b)-(d) of the Archives Act 1983.

 

The repeal of subregulation 11(1) also removes a reference to the Australian National Guide to Archival Material, which no longer exists.

 

Item 2 - subregulation 11(2)

 

This item is consequential to item 1. It replaces the words 'copy to the person' with 'person access to the record'. This is because under the new subregulation 11(1), the forms of access will be broader than the provision of a copy only.

 

Item 3 - paragraph 11(2)(b)

 

This item is also consequential to item 1. It replaces the words 'for the copy' with 'for a copy of the record' to reflect the increased breadth of the proposed subregulation 11(1).

 

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Archives Amendment (Charges) Regulations 2017

 

This Disallowable 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 Disallowable Legislative Instrument amends the Archives Regulations to provide that the National Archives of Australia (the Archives) can charge, on a cost recovery basis, for access to records it holds under paragraphs 36(2)(c) and (d) of the Archives Act 1983. The charge under paragraph 36(2)(c) would typically be levied where an audiovisual record is fragile or its contents can only be played on equipment which has become obsolete, and the record needs to be transferred to another format before its contents can be accessed by a member of the public. The charge under paragraph 36(2)(d) would typically be levied where a person requests a written transcript of a sound recording held by the Archives and the Archives produces that transcript.

The Director-General of the Archives has the power to waive charges for a number of reasons as set out in regulation 11 of the Archives Regulations. This includes in cases of financial hardship and where waiving the charge is in the public interest.

Other amendments in the Disallowable Legislative Instrument do not engage human rights. 

 

Human rights implications

This Disallowable Legislative Instrument engages the right to information in Article 19(2) of the International Covenant on Civil and Political Rights. The right to information 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 noted the importance of States parties proactively putting into the public domain Government information of public interest to give effect to the right of access to information and the need to make every effort to ensure easy, prompt, effective and practical access to such information (at paragraph 19). The General Comment also provides at paragraph 19 that fees for requests for information should not be such as to constitute an unreasonable impediment to access. The amendments to the Archives Regulations in the Disallowable Legislative Instrument are consistent with these requirements and the role of the Archives in encouraging public use and access to Commonwealth records as a vital element in documenting the history of the nation and the rights and entitlements of citizens.

The Disallowable Legislative Instrument is compatible with the right to information in that it provides ongoing, manageable and sustainable access to records held by the Archives. The Archives holds many audiovisual records which are either too deteriorated to play or which can only be played on equipment which is obsolete. For the content of these records to be accessible they need to be transferred (or digitised) to a format which can be played on modern playback equipment. This digitisation process is expensive and time consuming. For example, based on average duration, it costs approximately $200 to digitise a motion picture film. To ensure ongoing, sustainable access to these records, it is important that the Archives is able to recoup the costs of digitisation.

Any limitation of the right to information is a reasonable, necessary and proportionate means to achieve the goals of these amendments to the Archives Regulations. These measures are not intended to prevent or limit access to records or be intrusive and will enable a regime of equitable access to records held by the Archives to be promoted. Charge amounts are calculated to recover the base staffing costs for the process of retrieving a record and converting it into the new format. Charges will not be applied if a copy of the record suitable for access already exists. Cost recovery for the format transfer of records of any duration is set to the costs of transferring records of average duration. An applicant may ask for a quote of the estimated charges before proceeding with the request and may choose to refine the scope of the request as part of this process. The Archives' reference staff are available to assist applicants to refine their requests. Applicants may seek a waiver of fees if they believe they meet the criteria set out in regulation 11.

 

Conclusion

The Disallowable Legislative Instrument is compatible with human rights because it is consistent with the right to information and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.