Archives

Overview of the Archives Act 1983 (Cth).

16.96 The Archives Act establishes the National Archives of Australia (National Archives) and sets out comprehensive arrangements for conserving and preserving the archival resources of the Commonwealth.[134] The Archives Act was introduced at the same time as the FOI Act, as part of a package of administrative law reforms in the early 1980s. As noted in ALRC 77, the role of the National Archives includes:

encouraging and facilitating the use of archives, developing policy and advice for government agencies on the management, preservation and disposal of records and creating and maintaining information systems about the structure of government and the Commonwealth’s record series.[135]

16.97 National Archives is responsible for providing public access to government records that are in the ‘open access period’. The majority of records reach the open access period after they have been in existence for 30 years.[136] A longer period of time applies to certain categories of record, including Cabinet notebooks[137] and census information.[138]

16.98 Not all Commonwealth records are retained until the open access period. Under pt V div 2 of the Archives Act, records can be disposed of as required by law, in accordance with ‘normal administrative practice’, with the express permission of National Archives, or in accordance with a practice or procedure approved by the National Archives.

Exemptions

16.99 Section 33 of the Archives Act specifies a series of exemption categories, which define the types of information that may be considered to be sensitive and warrant non-disclosure in the open access period. Exemption categories include, for example, information that:

    • could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth;[139]

    • is communicated in confidence by or on behalf of a foreign government;[140]

    • if disclosed, would, or could reasonably be expected to, prejudice the investigation of a breach of the law or prejudice the fair trial of a person;[141]

    • would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person);[142] and

    • is the subject of taxation secrecy provisions.[143]

16.100 There is a clear relationship between the exemption provisions in the Archives Act and the FOI Act. As noted by Paterson:

[The] exemption provisions, although differently worded, cover similar ground to a number of the exemption provisions in the Commonwealth FOI Act and they share many drafting characteristics. … They make reference to many similar concepts such as ‘substantial adverse effect’ and reasonableness. Given that the Archives Act was specifically drafted to dovetail with the Commonwealth FOI Act, those expressions arguably convey similar meanings to those discussed ... in relation to freedom of information laws.[144]

16.101 The exemption provisions set out in the federal Archives Act are unusual as compared with public records laws in other jurisdictions. For example, the State Records Act 1998 (NSW) does not contain any exemption provision or enforceable access rights. New South Wales Government (NSW) agencies have discretion as to whether records should be placed in open or closed access. In Victoria, the decision as to closed or open access is at the discretion of the minister responsible for the Public Records Act 1973 (Vic).[145]

Information covered by taxation secrecy provisions

16.102 The Archives Act does not have a provision equivalent to s 38 of the FOI Act. The only exemption that refers to secrecy provisions concerns taxation secrecy provisions in s 33(3):

(3) For the purposes of this Act, a Commonwealth record is an exempt record if:

(a) it contains information or matter:

(i) that relates to the personal affairs, or the business or professional affairs, of any person (including a deceased person); or

(ii) that relates to the business, commercial or financial affairs of an organization or undertaking; and

(b) there is in force a law relating to taxation that applies specifically to information or matter of that kind and prohibits persons referred to in that law from disclosing information or matter of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.[146]

16.103 In the 1998 Report, Australia’s Federal Record: A Review of Archives Act 1983 (ALRC 85), the ALRC recommended the repeal of the exemption for information that is the subject of taxation secrecy provisions.[147] Although it recognised concerns expressed by the ATO and others about the need to protect confidentiality, the ALRC was not convinced that extra protection for these records was required in the open period:

Most of the records of concern in this provision are routinely destroyed before they reach 30 years of age. For those records which are not destroyed, the Commission considered that any information with continuing sensitivity would be adequately protected by other exemption categories, including the information given in confidence, personal information and business affairs exemptions.[148]

16.104 The destruction of records held by the ATO is governed by Records Disposal Authority No 1194, issued under s 24(2)(b) of the Archives Act. The authority specifies various periods after which different types of records can be disposed of. Most are considerably shorter than the 30 years it takes to reach the open access period—for example, tax return forms can be destroyed after four years, and principal accounting records after seven years. A small number of records must be retained permanently. However, these appear to relate predominantly to high-level policy documents. With respect to cases that set precedent (which must be retained permanently), the authority specifies they must contain ‘no specific reference to a client’.[149]

Census information

16.105 Officers of National Archives are themselves subject to an express secrecy provision in relation to census information. Section 30A(1) of the Archives Act, introduced through the Census Information Legislation Amendment Act 2000 (Cth), provides that:

An Archives officer must not, at any time before a record containing Census information from a Census is in the open access period for that Census, divulge or communicate any of that information to another person (except to another Archives officer for the purposes of, or in connection with, the performance of that other officer’s duties under this Act).

16.106 Section 30A(3) ensures that this provision prevails over s 58, which would otherwise allow National Archives to disclose census information where it was proper to do so or required by law.

Submissions and consultations

16.107 In response to IP 34, a number of stakeholders addressed the relationship between secrecy provisions and exemptions to the access requirements in the Archives Act. The Australian Bureau of Statistics and the ATO strongly defended the retention of specific exemptions with respect to their areas of operation.[150] In contrast, National Archives supported the removal of s 33(3) of the Archives Act, and argued that secrecy provisions in other legislation should not extend protection to open access period records.[151]

16.108 In DP 74, the ALRC affirmed the recommendation in ALRC 85 that s 33(3) of the Archives Act should be repealed.[152] Stakeholders expressed divided views.

16.109 The Treasury did not support repeal of s 33(3), submitting that this provision ‘give[s] effect to the legitimate expectations of taxpayers that the confidentiality of their tax information will be respected, both when they provide it and in 30 years from that time’. Reliance on other exemptions in the Archives Act would introduce ‘an element of uncertainty’, that may adversely impact on taxpayer confidence.[153] Similar arguments were put forward by the ATO, which also noted that:

the repeal of s 33(3) would create an anomalous situation, where the [National Archives] could permit access to taxpayer records after 30, or possibly 20, years in circumstances where it would be a criminal offence for a tax officer to disclose those records.[154]

16.110 The Australian Transaction Reports and Analysis Centre was also concerned that repeal of s 33(3) could allow disclosure of information obtained under s 16 of the Financial Transaction Reports Act 1988 (Cth) and ss 41 and 49 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).[155]

16.111 Civil liberties groups supported the proposal to repeal s 33(3).[156] National Archives also supported the proposal, on the basis that exemption categories in the Archives Act already contain ‘robust protection’. Assessing information against the exemption categories in s 33 allows determination of

an ongoing need for protection rather than having the blanket coverage of secrecy provisions, which may result in information being withheld indefinitely and permanently from public scrutiny.[157]

16.112 IBA also supported this proposal.[158]

ALRC’s views

16.113 The Archives Act and FOI Act mirror each other in many respects, including in a number of the exemption provisions. However, the Archives Act operates in a significantly different context—in particular, through the diminished sensitivity of information over time and the historical interest in information being made available during the open access period. This difference is highlighted by the small number of exemptions that apply to the disclosure of open access documents in most other jurisdictions, as discussed above.

16.114 In the ALRC’s view, the taxation secrecy provision set out in s 33(3) of the Archives Act should be repealed. In keeping with the objective of the Archives Act to provide public access to government documents, this information should be made available subject to a case-by-case analysis under the other Archives Act exemptions. The ALRC does not anticipate that this recommendation will unduly impact on the regulatory role of the ATO, due to the routine destruction of most personal taxation information prior to the open access period and the diminished sensitivity of information by the time of open access. Remaining exemptions in the Archives Act, including those for personal privacy or where disclosure would constitute a breach of confidence, provide further protection.

16.115 The ALRC is not recommending reform of the secrecy provision in the Archives Act in relation to census information. The provision only applies to census information prior to its entry into the open access period, as compared with the tax secrecy exemption which applies indefinitely. Further, the assurance of absolute secrecy for the designated time—currently 99 years—enhances the Australian archival system by ensuring public confidence in providing identified census information to the National Archives.

Recommendation 16–5 Section 33(3) of the Archives Act 1983 (Cth) should be repealed.

Interaction between the Archives Act and other secrecy provisions

16.116 With the exception of census and tax information, discussed above, the Archives Act does not make reference to secrecy provisions in other Acts. This has given rise to some uncertainty about the relationship between secrecy requirements and the public access provisions of the Archives Act.[159] National Archives advised that it has sought legal advice on five occasions between 1985 and 1998 to confirm that the Archives Act has primacy over confidentiality or secrecy provisions in a number of other Acts.[160] It suggested that the relationship between secrecy provisions and the Archives Act could be clarified:

by insertion of a clause in the latter Act confirming such provisions cease to apply to records properly made available for public access (ie records assessed against the exemption categories set out in Section 33). Such a clause would resolve current uncertainty, while at the same time providing necessary ongoing protection for sensitive information.[161]

16.117 In ALRC 85, it was noted that the 1979 draft of the Archives Bill included a clause which provided for a schedule of enactments which would override the access provisions of the archives legislation. In reviewing the Bill, the Senate Standing Committee on Constitutional and Legal Affairs ‘strongly opposed’ inclusion of the provision on the basis that ‘a possible conflict of obligations would not … justify or necessitate the exclusion of some categories of records from the access provisions’.[162] The provision was subsequently removed from the Bill.[163]

16.118 The ALRC recommended that the Archives Act should

expressly provide that non-disclosure provisions in other legislation do not override the public access provisions of the archives legislation unless this is expressly provided for in the legislation concerned.[164]

16.119 This reflects the position, for example, under s 53 of the State Records Act 1998 (NSW), which provides that secrecy provisions do not apply to disclosure of information in the open access period. The section ‘does not apply to a provision of an Act if the Act provides specifically to the effect that the prohibition concerned applies despite this Act’, or where a specified provision of an Act is exempted from the operation of the section under the regulations.[165]

Submissions and consultations

16.120 In DP 74, the ALRC proposed that the Archives Act should provide that where a record enters the open access period, any non-disclosure provision applicable to the record ceases to have effect, unless expressly stated in the relevant legislation.[166] In order to effect this reform, the ALRC proposed that the Office of Parliamentary Counsel should issue a drafting direction that any proposed non-disclosure provision should indicate expressly whether it overrides the Archives Act in the open access period.[167]

16.121 Several government and other stakeholders supported the proposed inclusion of an override provision in the Archives Act and a corresponding drafting direction.[168] However, National Archives raised concerns about the potential for other legislation to expressly override the Archives Act—in particular, that this could have the effect of excluding records from the access and review provisions of the Archives Act. National Archives suggested that such an override could require a new exemption category in s 33, which refers to records that are subject to a non-disclosure provision in another Act.[169]

16.122 National Archives expressed in-principle support for the proposed drafting direction, ‘insofar as it is necessary to provide for another Act to override the Archives Act’. National Archives reiterated its preferred position, however, that secrecy provisions in other Acts should lapse when records reach the open access period. Further, if a non-disclosure provision is applied to records in the open-access period, then the exemption should be included in the Archives Act. This would ‘clearly identify the limits to the right of access and make sure that decision makers and applicants are aware of all non-disclosure provisions’.[170]

16.123 The ATO opposed the proposed override provision on the basis that it could undermine the protection provided to taxpayer information and create uncertainty for tax officers. However, it expressed support for the proposed drafting direction. The ATO advised that, should s 33(3) of the Archives Act be repealed and the time to reach the open access period reduced to 20 years (as is proposed in the FOI Exposure Draft Bill), the taxation secrecy provision will need to be updated to ensure taxpayer information retains sufficient protection.[171]

ALRC’s views

16.124 To overcome any real or perceived ambiguity, the Archives Act should provide that the public access provisions of the Act override any secrecy provisions that would otherwise apply. This is consistent with the ALRC’s recommendations in ALRC 85 and its proposal for reform in DP 74.

16.125 It is important to note that the ALRC is not, however, recommending that legislation should be drafted to expressly override the open access provisions in the Archives Act. For the reasons set out in support of Recommendation 16–5, the ALRC is not aware of any secrecy provisions that warrant categorical exemption from the open access provisions of the Archives Act. This was also the view of the Senate Standing Committee on Constitutional and Legal Affairs in its 1979 report.[172]

16.126 In the event that a future Parliament is of the view that a secrecy provision should form the basis of an exemption from the open access requirements of the Archives Act, the exemption should be included in the Archives Act itself. As submitted by National Archives, this will provide clarity for decision makers, as well as ensuring that those seeking access to such records will have recourse to the avenues set out in the Archives Act for review of decisions.

Recommendation 16–6 The Archives Act 1983 (Cth) should be amended to provide that the public access provisions of the Act override any secrecy provisions that would otherwise apply.

[134]Archives Act 1983 (Cth) pt V.

[135] Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995), [5.3].

[136] Under proposed amendments in the FOI Exposure Draft Bill, this would be reduced to 20 years: Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth), sch 3 pt 1.

[137] Currently 50 years: Archives Act 1983 (Cth) s 22A. Under proposed amendments in the FOI Exposure Draft Bill, this would be reduced to 30 years: Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) sch 3 pt 1.

[138] Currently 99 years: Archives Act 1983 (Cth) s 22B.

[139] Ibid s 33(1)(a).

[140] Ibid s 33(1)(b).

[141] Ibid s 33(1)(e)(i), (f)(i).

[142] Ibid s 33(1)(g).

[143] Ibid s 33(3). The taxation exemption is considered further below.

[144] M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005), [5.59].

[145] Ibid, [5.59]–[5.63]. The Terrorism (Community Protection) (Further Amendment) Act 2006 (Vic) has somewhat changed this situation, by inserting into the Public Records Act a new s 10AA. This section allows the responsible minister or the public records office to declare that a record must not be made available for public inspection in certain security and defence-related circumstances.

[146]Archives Act 1983 (Cth) s 33(3).

[147] Australian Law Reform Commission, Australia’s Federal Record: A Review of the Archives Act 1983, ALRC 85 (1998), Rec 167. This recommendation has not been implemented.

[148] Ibid, [20.77].

[149] National Archives of Australia, Records Disposal Authority No 1194—Australian Taxation Office (1995).

[150] Australian Bureau of Statistics, Submission SR 28, 24 March 2009; Australian Taxation Office, Submission SR 13, 16 February 2009.

[151] National Archives of Australia, Submission SR 29, 23 February 2009.

[152] Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
4–5.

[153] The Treasury, Submission SR 60, 10 August 2009.

[154] Australian Taxation Office, Submission SR 55, 7 August 2009.

[155] Australian Transaction Reports and Analysis Centre, Submission SR 73, 17 August 2009.

[156] Liberty Victoria, Submission SR 50, 5 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

[157] National Archives of Australia, Submission SR 63, 12 August 2009.

[158] Indigenous Business Australia, Submission SR 64, 13 August 2009. The Department of Human Services agreed the relationship between secrecy provisions and the Archives Act should be clarified but did not express a view on the appropriate solution: Department of Human Services, Submission SR 83, 8 September 2009.

[159] Several instances where conflict has arisen were canvassed in Australian Law Reform Commission, Australia’s Federal Record: A Review of the Archives Act 1983, ALRC 85 (1998) [15.58]–[15.61].

[160] National Archives of Australia, Submission SR 29, 23 February 2009.

[161] Ibid.

[162] Parliament of Australia—Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and Aspects of the Archives Bill 1978 (1979), [33.28].

[163] Australian Law Reform Commission, Australia’s Federal Record: A Review of the Archives Act 1983, ALRC 85 (1998), [15.62].

[164] Ibid, Rec 108.

[165] At the time of writing, no secrecy provisions were exempted from the operation of s 53 of the State Records Act 1998 (NSW) under the State Records Regulations 2005 (NSW).

[166] Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
4–6.

[167] Ibid, Proposal 4–7.

[168] See, eg, Indigenous Business Australia, Submission SR 64, 13 August 2009; National Archives of Australia, Submission SR 63, 12 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009. The Department of Human Services agreed the relationship between secrecy provisions and the Archives Act should be clarified but did not express a view on the appropriate solution: Department of Human Services, Submission SR 83, 8 September 2009.

[169] National Archives of Australia, Submission SR 63, 12 August 2009.

[170] Ibid.

[171] Australian Taxation Office, Submission SR 55, 7 August 2009.

[172] Parliament of Australia—Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and Aspects of the Archives Bill 1978 (1979), [33.28].