Civil Law and Justice Legislation Amendment Act 2018 (130 of 2018)

Schedule 2   Amendment of the Archives Act 1983

Part 1   Access to records

Archives Act 1983

11   At the end of Division 3 of Part V

Add:

40A Consideration period for applications for access to records

(1) The consideration period for an application to which section 40 applies is the period starting on the day after the application is received by the Archives and ending:

(a) subject to paragraph (b), at the end of the shorter of the following periods (the initial period ):

(i) 90 business days;

(ii) a period of business days prescribed by the regulations for the purposes of this subparagraph; or

(b) if the initial period is extended on one or more occasions under this section - at the end of the initial period as so extended.

Extending the initial period - by agreement with applicant

(2) The Director-General may, with the applicant's written agreement and before the end of the consideration period, by written notice given to the applicant extend the application's initial period (including that period as previously extended under this section) by a specified number of business days.

(3) If the Director-General requests the applicant to enter into an agreement for the purposes of subsection (2), the Director-General must inform the applicant that he or she is not obliged to comply with the request.

Extending the initial period - number of items exceeds the application cap

(4) The Director-General may, before the end of the consideration period, by written notice given to the applicant extend the application's initial period (including that period as previously extended under this section) by a specified number of business days, if the Director-General reasonably believes that:

(a) the applicant has made one or more applications for which the consideration period has not ended; and

(b) the number of items that describe the records covered by those one or more applications exceeds the following number:

(i) unless subparagraph (ii) applies - 25;

(ii) if the regulations prescribe a larger number for the purposes of this subparagraph - that larger number.

(5) For the purposes of paragraph (4)(b), an item is the smallest discrete unit used by the Archives to describe a record in a series for purposes related to the care, management or retrieval of the record.

Example: For records in a file:

(a) if the file is divided into parts - each of the parts is a separate item; and

(b) if the file is not divided into parts - the file is a single item.

Limit on extensions under subsection (4)

(6) A particular extension under subsection (4) must not have the effect that an application's initial period is extended under that subsection by more than the number of business days worked out using the following formula (rounding up to the nearest whole number):

where:

application cap means the number applicable under subparagraph (4)(b)(i) or (ii).

items requested means the number of items that the Director-General reasonably believes describe the records covered by the one or more applications mentioned in paragraph (4)(b) in relation to the extension.

unextended initial period means the number of business days in the initial period under subparagraph (1)(a)(i) or (ii), disregarding any extensions under this section.

Varying or revoking extensions under subsection (4)

(7) The Director-General may vary or revoke an extension under subsection (4) by written notice given to the applicant before the end of the period of the extension. This subsection does not limit subsection 33(3) of the Acts Interpretation Act 1901.

(8) For the purposes of applying subsection (6) in relation to an extension that is varied under subsection (7), the number of items mentioned in paragraph (4)(b) is to be determined on the basis of applications made by the applicant as at the time of the variation.

Matters to be taken into account for extensions under subsection (4)

(9) The Director-General must take into account the matters (if any) prescribed by the regulations for the purposes of this subsection in:

(a) extending an application's initial period under subsection (4); or

(b) varying an extension under that subsection.

40B Applications for access to records made by persons acting in concert etc.

(1) The Director-General may, by writing, determine that an application to which section 40 applies that was made by a person (the first person ) is taken for the purposes of this Act to have been made by another person if the Director-General reasonably suspects that the first person:

(a) acts, or is accustomed to act; or

(b) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

in accordance with the directions, instructions or wishes of, or in concert with, the other person in relation to the making of such applications.

(2) The determination has effect accordingly.

(3) The Director-General must give written notice of the determination to both of the persons mentioned in subsection (1).