The Archives Act 1983 empowers the National Archives of Australia to preserve and make accessible the archival resources of the Commonwealth. The Act establishes a right of public access to non-exempt Commonwealth records in the 'open access period'.
Amendments made to the Act in October 2018, which took effect on 25 April 2019, facilitate more efficient and equitable access to records for all applicants through the introduction of arrangements to manage applications for access to large numbers of records.
The key changes to the Act are:
Definition of item
The Act now defines an item as an individual description of a record in a series and provides the following examples:
- If divided into parts – each part is a separate item
- If not divided into parts – it is a single item
The Act specifies an application cap of 25 items. This number can be increased by regulation.
The application cap is the maximum number of items that can be subject to one or more applications for access made by an individual, or individuals acting in concert, before the period that the National Archives has to respond to the applications can be extended unilaterally by this agency.
Where the cap is not exceeded, the National Archives is generally required to respond to applications within 90 business days after the day it has received the application (unless the applicant agrees to an extension, as outlined further below). Historically, the National Archives has responded to over 90% of applications within this period.
The 90 business days period is defined as the Initial period. Unless extended, the National Archives is required to respond to an application during this period.
Where no extension occurs, failure to respond within this period continues to result in a deemed refusal of access which triggers rights of appeal for the applicant. For more information about deemed refusal see Why we refuse access.
Unilateral extension of Consideration period
Where applications for more than 25 items are current (a decision for access has not been made), the Initial period can be extended unilaterally by the Director-General of the National Archives (or delegate). This extended period becomes the Consideration period for these applications and is the new period of time within which the National Archives must respond to an application for access. Where an extension occurs the Consideration period will be greater than the 90 business day Initial period. The Consideration period can be increased as more records are requested.
Extension of Consideration period by agreement
By mutual agreement with the applicant, the Director-General of the National Archives (or delegate), has the ability to extend the Consideration period for processing an access application where the applicant seeks access to 25 or less items.
Where one or more applications submitted by the applicant exceed 25 items, the consent of the applicant is not required before the period can be extended.
The National Archives will notify applicants of any extension.
Calculating the extension
The Act sets out the formula by which an extension to the Initial Period is calculated.
The formula is:
Unextended initial period X (Items requested/Application Cap)
Application cap = 25 items
Items requested = the number of items subject to current applications made by the applicant
Unextended initial period = 90 business days
The extension calculated under this formula is added to the Initial period (90 business days) for the applicants' current applications. The following table shows how the extension formula applies as the number of items sought under current applications increases:
|Number of items||Consideration period – business days||Approximate months1|
|30||90 x 30/25 = 108 + 90 = 198||10|
|40||90 x 40/25 = 144 + 90 = 234||12|
|50||90 x 50/25 = 180 + 90 = 270||13.5|
|100||90 x 100/25 = 360 + 90 = 450||22.5|
|200||90 x 200/25 = 720 + 90 = 810||40.5|
1 Indicative only - using 20 business days per month
Applicants working in concert
The Director-General of the National Archives (or delegate), has the power to determine that different applicants are working in concert and that the applications made by one applicant should be counted towards the application cap for another applicant. Each applicant will be notified in writing of any such determination.
Cancellation of applications
An applicant may cancel an application for access at any time. If cancellation reduces the number of items sought by the remaining applications below the application cap, the Consideration period for the remaining applications may also reduce.
The National Archives will notify applicants of any change to the Consideration period.
Applications for internal reconsideration
Applicants continue to have the right to seek internal review of decisions made by the National Archives to restrict access to open period Commonwealth records. The consideration period for internal review of access decisions by the National Archives is extended to 30 business days.