Archives Act 1983 (Tas)

Archives Act 1983 An Act to provide for the custody of State and other records and to repeal the provisions of the Archives Act 1965 [Royal Assent 11 January 1984] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: : PART I - Preliminary 1. Short title This Act may be cited as the Archives Act 1983 . 2. Commencement (1) This section and section 1 shall commence on the day on which this Act receives the Royal Assent. (2) Except as provided in subsection (1) , this Act shall commence on such day as may be fixed by proclamation. 3. Interpretation (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires – Archives Office means the Archives Office of Tasmania and any branch of that office and includes any premises at which State archives are deposited or stored; commencement day means the day fixed under section 2(2) ; Court means the Supreme Court and includes a judge of that Court; Crown record means a record – (a) made for the use, or any purpose, of the Crown; or (b) in the case of a record not so made, kept by an officer or employee of the Crown for any public purpose in accordance with a duty or responsibility imposed, or a power or authority conferred, by or under an Act; Government department means – (a) a department of the State Service established under the State Service Act 2000 ; or (b) a department or service of the State that does not form part of the State Service – and includes any department which would be a department referred to in paragraph (a) , or would be a department or service referred to in paragraph (b) , but for the fact that it has ceased to exist, or has been merged with or superseded by some other body; local authority means any – (a) council; or (b) body corporate established by or under an Act or in the exercise of prerogative rights of the Crown and having jurisdiction limited to a district, locality or part of the State; public State record means a register or other State record kept in accordance with a duty or responsibility imposed, or a power or authority conferred, by or under an Act, for the information of the public and available under that Act for public inspection; record means a document or an object that is, or has been, made or kept by reason of any information or matter that it contains or can be obtained from it or by reason of its connection with any event, person, circumstance, or thing; relevant authority means – (a) in relation to a Government department that is established under the State Service Act 2000 – the Head of that department; (b) in relation to a department or service of the State that does not form part of the State Service – the person who is directly responsible to the Minister concerned for the administration and direction of that department or service; (c) in relation to a State authority or a local authority that is incorporated – that authority; or (d) in relation to a State authority or a local authority that is unincorporated – the secretary, clerk, or other principal executive officer of that authority; the repealed Acts means the Archives Act 1965 and, where appropriate, the Public Records Act 1943; the regulations means regulations made and in force under this Act; State archive means any State record or any other record which is for the time being deposited and preserved in the Archives Office; State authority means a body, an authority, a royal commission or a board of inquiry, that is not a Government department or a local authority, whether that body, authority, royal commission or board is incorporated or not, and that is established or constituted by or under an Act or in the exercise of prerogative rights of the Crown where – (a) that body, authority, royal commission or board, or its governing authority, wholly or partly comprises a person appointed by the Governor, a Minister or another State authority; or (b) the Crown has a controlling interest, or is a major shareholder, in that body, authority, royal commission or board; State record means – (a) a Crown record; or (b) a record of a State authority; or (c) a record of a local authority; or (d) any other record that was at any time a record mentioned in paragraph (a) , (b) or (c) – but does not include a record of the Parliament of Tasmania. (1A) A reference in this Act to a department or service of the State that does not form part of the State Service is a reference to – (a) the Police Service; and (b) . . . . . . . . (c) any other department or service of the State prescribed by the regulations for the purposes of this paragraph. (2) In this Act, a reference to Tasmania includes a reference to Van Diemen's Land and any island which was, at the relevant time, governed as a dependency of Tasmania or Van Diemen's Land. (3) In this Act, a reference to an officer of a Government department includes a reference to the Minister responsible for administering that department and a reference to an officer of a State authority or a local authority includes a reference to a member of the governing or managing board, council, or committee of that authority. (4) . . . . . . . . (5) Without limiting the generality of the definition of the expression record in subsection (1) – (a) the reference to a document in that definition includes a reference to any printed or written material; and (b) the reference to an object in that definition includes a reference to a sound recording, coded storage device, magnetic tape or disc, microfilm, photograph, film, map, plan, or model or painting or other pictorial or graphic work. (6) For the purposes of this Act, records shall be regarded as being deposited in the Archives Office notwithstanding that they may have been lent or temporarily removed from that office or are kept in the custody of a person in accordance with arrangements made under section 8 (4) . 4. Act to bind Crown in right of Tasmania This Act binds the Crown in right of Tasmania. 5. Act not to apply to certain records This Act does not apply to or in relation to – (a) records of any department, instrumentality, or agency of the Commonwealth; (b) records that have passed to the Commonwealth under section 85 of the Australian Constitution; or (c) records of a class prescribed in the regulations for the purposes of this section, except any such records which are deposited in the Archives Office in accordance with an agreement or an arrangement made with the Commonwealth or a Commonwealth Authority, agency, or instrumentality (whether before, on, or after the commencement day). PART II - Archives Office Division 1 - Continuance of office, &c. 6. Continuance of Archives Office There shall continue to be an office and repository in Tasmania to be known as the "Archives Office of Tasmania" in which such State records as are made available to the State Archivist and are considered by him to be worthy of preservation shall be deposited and preserved as State archives. 7. Appointment of State Archivist, &c. (1) The Minister administering the State Service Act 2000 is to appoint a State Service officer or State Service employee employed under that Act to be State Archivist and that officer or employee is to hold that office in conjunction with State Service employment. (2) Subject to and in accordance with the State Service Act 2000 , there shall be employed such persons as are considered necessary for the purposes of this Act. Division 2 - Functions, &c., of State Archivist, &c. 8. Responsibilities and powers of State Archivist (1) The State Archivist is responsible for – (a) the care of the State archives; and (b) taking all practicable steps for the preservation of the State archives; and (c) making and authenticating copies of materials or parts of materials kept in the State archives required as evidence in legal proceedings or for other purposes; and (d) performing such other duties as are prescribed by or under this Act; and (e) making and issuing guidelines in respect of any matter relating to the making and the keeping of State records. (2) The State Archivist has power to do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of his or her functions and, in particular, has power to do the following: (a) provide facilities for access to the State archives; (ab) provide systems, including indexes and guides, to enhance the accessibility of the State archives; (b) prepare publications concerning the activities of, and facilities provided by, the Archives Office and the State Archivist; (c) arrange for the publication, on such terms and conditions as the State Archivist or the Minister thinks fit, of any of the State archives or of any article prepared from records in the State archives; (d) accept responsibility for the safe keeping of documents and objects which are not State records; (e) make arrangements for the separate housing of films and other objects which have to be kept under special conditions; (f) lend State archives for display at exhibitions and for other special purposes; (g) acquire records by purchase, gift, or bequest or on loan. (3) The State Archivist may include in State archives records held or acquired by him otherwise than under this Act or by the Tasmanian Library Board or any other person under the repealed Acts. (4) Subject to any other law in force in Tasmania, where the State Archivist considers it appropriate to do so, he may make arrangements with another person for records in his custody to be kept in the custody of that person. (5) Arrangements referred to in subsection (4) shall provide for the care of, and provision of access to, the records to which they relate and for the regular inspection of those records by the State Archivist or an officer or employee of the Archives Office. (6) The State Archivist is responsible for providing for use in the Archives Office a seal bearing the armorial designs and supporters assigned for Tasmania surrounded by the words "Archives Office of Tasmania". (7) . . . . . . . . (8) . . . . . . . . 9. Power to accept gifts, &c. (1) The Minister, the Secretary of the Department, or the State Archivist may, for the purposes of this Act, accept or acquire on behalf of the State any real or personal property by gift inter vivos or mortis causa or by bequest or devise and may agree to any condition subject to which any such gift, bequest, or devise is made. (2) The rule of law known as the rule against perpetuities or the rule against remoteness of vesting does not apply to a condition referred to in subsection (1) . (3) . . . . . . . . PART III - Records and State Archives Division 1 - Preservation and acquisition of State and other records 10. Preservation of State records (1) The relevant authority – (a) is to keep proper records in respect of the business of the Government department, State authority or local authority for which the relevant authority is responsible; and (b) is to cause all such records to be preserved and accessible until they are dealt with in accordance with this Act; and (c) may, in the name of the Government department, State authority or local authority, take legal proceedings for the recovery of any such records if the relevant authority no longer has legal custody of them. (2) Where the State Archivist believes on reasonable grounds that any State records are being kept under control of a relevant authority, the State Archivist may – (a) after giving not less than 2 days' notice to the authority, enter and inspect any place under the control of that authority or any place at which he believes on reasonable grounds that any such records are being kept; (b) inspect any State records kept at any place entered pursuant to paragraph (a) ; and (c) give advice in writing to the relevant authority with respect to the keeping of any State records under the control of the authority. (3) Any person who, without lawful justification or reasonable excuse, obstructs the State Archivist in the exercise of the powers conferred by subsection (2) (a) or (b) is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units. (4) It is the duty of every relevant authority to whom or to which advice is given under subsection (2) (c) to take all reasonable steps to implement the advice. (5) In subsections (2) and (3) a reference to the State Archivist includes a reference to any State Service officer or State Service employee who is for the time being acting with the authority of the State Archivist. 10A. State Archivist may issue guidelines (1) The State Archivist may, by written instrument, issue guidelines to a relevant authority in respect of any matter relating to the making and the keeping of State records. (2) The State Archivist may, by written instrument, amend or revoke the guidelines. (3) It is the duty of the relevant authority to take all reasonable steps to ensure that the guidelines are complied with. 11. Transfer of State records to Archives Office (1) Subject to this Part, when a State record that is in the custody or possession of a Government department, a State authority, or a local authority, or an officer or employee of a Government department, State authority, or local authority has ceased, whether before, on, or after the commencement day, to be required to be readily available for the purposes of the Crown or, as the case may be, the State or local authority or, in the case of a record that is a public State record, to be readily available for public use or reference, the relevant authority shall, unless the record has been lawfully destroyed, cause it to be delivered to the State Archivist, in accordance with arrangements made or approved by him, for depositing in the Archives Office. (2) Subject to this Part, where a State record (not being a public state record) that is in the custody or possession of a Government department, a State authority, or a local authority, or an officer or employee of a Government department, a State authority, or a local authority, has been in existence as a State record for 25 years, the relevant authority shall, unless exempted in writing by the State Archivist cause the record to be delivered to the State Archivist as soon as it is practicable to do so for depositing in the Archives Office. (2A) If the State Archivist grants an exemption under subsection (2) , the State Archivist may also require the relevant authority to meet any conditions that the State Archivist considers appropriate in respect of the management of, and the provision of access to, the State records that are the subject of the exemption. (3) A reference in this section to a Government department or to an officer or employee of a Government department does not include a reference to the Archives Office or to an employee employed in that Office. 12. Recovery of State records (1) Where the Minister believes on reasonable grounds that – (a) a Crown record to which this section applies is in the custody or possession of a person otherwise than as an officer or employee of the Crown; or (b) a State authority or local authority record to which this section applies is in the custody or possession of a person other than the relevant authority or a person acting under the supervision or direction of the relevant authority – the Minister may, by notice in writing given by certified mail, require that person to deliver that record to the Archives Office within such period as may be specified in the notice. (2) If a person to whom a notice is given under subsection (1) does not comply with the notice within the specified period, the Minister may make an application to the Court for an order directing the delivery to the Archives Office of the record that is specified in the notice. (3) No length of time shall bar the rights of the Crown in relation to an application under subsection (2) . (4) On the hearing of an application under subsection (2) , the Court may – (a) make the order that is applied for; (b) refuse the application; or (c) order the Minister to deliver a statement of claim on which further proceedings shall be taken in the matter. (5) Where the Court makes an order under subsection (4) , it may make such ancillary orders as it thinks appropriate. (6) The Minister has, in relation to an application under subsection (2) for the delivery to the Archives Office of a State authority or local authority record to which this section applies, all the rights to which the State authority or local authority concerned would be entitled to exercise in relation to that record. (7) In this section – (a) a reference to a Crown record to which this section applies is a reference to a Crown record, other than a record already deposited in the Archives Office or a record the transfer or disposal of which has been authorized – (i) under this Act or either of the repealed Acts; or (ii) in the case of a transfer or disposal of a Crown record outside Tasmania – under an enactment of the Commonwealth, another State, a Territory of Australia, or a country or territory outside Australia corresponding to this Act or expressly by the Governor or a Minister of this State; and (b) a reference to a State authority or local authority record to which this section applies is a reference to such a record, other than a record already deposited in the Archives Office or record the transfer or disposal of which has been authorized under this Act or either of the repealed Acts. 13. Compensation (1) Where the State Archivist obtains possession of records by means of a notice given or proceedings taken under section 12 , a prescribed person may make an application in writing to the Minister claiming compensation in respect of deprivation of those records, and, after determining the amount that appears to him to be fair and reasonable in the circumstances, the Minister may, with the approval of the Treasurer, pay that amount to that prescribed person. (1A) In determining if an amount is fair and reasonable for the purposes of subsection (1) , the Minister may – (a) take into consideration any one or more of the following matters: (i) the price usually paid by an archival institution, a library or any other public institution collector for similar records; (ii) the condition of the State records; (iii) the present or potential future value of the State records for research; (iv) the importance of the State records, in the context of other records already held or sought by the State Archivist; (v) the expenses incurred by the person who had possession or control of the State records immediately before the records came into the possession of the State Archivist; and (b) obtain the opinion of a valuer, appointed under the Income Tax Assessment Act 1997 of the Commonwealth, as to the likely value of the State records. (2) For the purposes of subsection (1) , the following persons are prescribed persons: (a) in the case of Crown records – the person who had custody or possession of the records immediately before they came into the possession of the State Archivist; (b) in the case of records other than Crown records – (i) the person who had custody or possession of the records immediately before they came into the possession of the State Archivist; or (ii) if that person is not the owner of the records or the State authority or public authority whose records they were, the owner of the records. (3) If a person who has claimed compensation under subsection (1) is dissatisfied with the amount of compensation determined by the Minister, under that subsection, that person may apply to the Magistrates Court (Administrative Appeals Division) for a review of the determination. (4) The Magistrates Court (Administrative Appeals Division) has jurisdiction to hear and determine an application under subsection (3) notwithstanding any other law to the contrary. (5) . . . . . . . . (6) In addition to its powers under the Magistrates Court (Administrative Appeals Division) Act 2001 , the Magistrates Court (Administrative Appeals Division) may– (a) determine the amount of compensation (if any) that it thinks should be paid to the applicant and make an order directing the Minister to pay to him the amount so determined; or (b) make an order directing that the amount of compensation payable to the applicant be determined by arbitration under the Commercial Arbitration Act 2011 . (7) An order referred to in subsection (6) (b) shall, for the purposes of applying the Commercial Arbitration Act 2011 to the arbitration that is the subject of the order, be deemed to be a written agreement between the applicant under subsection (3) and the Minister to submit their differences to arbitration. (8) Where a person who has made an application under this section for compensation in respect of records delivered by him or his predecessor in title to the Archives Office has made a payment for those records to a thief or receiver of stolen goods, either innocently or to preserve those records from harm, then, notwithstanding that he has no proprietary interest in those records, that person may be awarded compensation under this section in respect of the whole or such part of the amount of that payment as the Minister or, as the case may be, the Magistrates Court (Administrative Appeals Division) determines as being appropriate. (9) . . . . . . . . (10) . . . . . . . . 14. Injunctions (1) The Court may, on the application of the Minister, the Secretary of the Department, or the State Archivist, grant an injunction – (a) requiring a person who has custody or possession of records that are sought by the State Archivist to refrain from dealing with those records except as authorized or directed by the Court; and (b) if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing in relation to those records. (2) Where an application is made to the Court under subsection (1) , the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in subsection (1) (a) pending determination of the application. (3) The Court may at any time rescind or vary an injunction granted under subsection (1) or (2) . (4) Where an application under this section is made to the Court for the granting of an injunction restraining a person from engaging in conduct of a particular kind, the power of the Court to grant the injunction may be exercised – (a) if the Court is satisfied that the person has engaged in conduct of that kind – whether or not it appears to the Court that the person intends to engage, or to continue to engage, in conduct of that kind; or (b) if it appears to the Court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind – whether or not the person has previously engaged in conduct of that kind and whether or not there is imminent danger of substantial damage being sustained if the person engages in conduct of that kind. (5) Where an application is made under this section for an injunction, the Court shall not require the applicant, as a condition of granting an interim injunction, to give any undertaking as to damages. 15. Conditions may be imposed on the making of State archives available for public inspection (1) Where a State record to which this subsection applies is deposited in the Archives Office, that record shall, unless the relevant authority otherwise directs or specifies in writing notified to the State Archivist, be deemed to be subject to a condition prohibiting the State Archivist from making the record available for inspection by members of the public. (2) Subsection (1) applies to the following State records: (a) a record that has been submitted to the State Cabinet for its consideration or is or was proposed by a Minister to be so submitted; (b) an official record of the State Cabinet; (c) a copy of, or of a part of, a record referred to in paragraph (a) or (b) ; (d) a record that has been submitted to the State Executive Council for its consideration or is proposed by a Minister to be so submitted; (e) an official record of the State Executive Council; (f) a copy of, or of part of, a record referred to in paragraph (d) or (e) . (3) Subject to this section, where a relevant authority makes any State record available to the Archives Office, that authority may, by notice in writing given to the State Archivist – (a) inform the State Archivist that the record contains information or matter, the disclosure or divulging of which is prohibited by any enactment other than a provision of this Act; or (ab) if the State record is a record held by the Implementation Monitor, within the meaning of the Child Safety Reform Implementation Monitor Act 2024 , inform the State Archivist that the record contains information or matter, the disclosure or divulging of which is prohibited by a provision of this Act; or (b) in a case where the record contains information or matter of a kind specified in subsection (4) – impose such conditions as the authority considers to be appropriate – (i) prohibiting the State Archivist from making the record available for inspection by members of the public; or (ii) restricting the persons or the class of persons to whom or to which the State Archivist may make the record available for inspection. (4) The following kinds of information and matter are specified for the purposes of subsection (3) (b) : (a) information or matter the disclosure of which would involve the disclosure of any deliberation or decision of the State Cabinet, not being information or matter contained in a record by which a decision of the State Cabinet was officially published; (b) information or matter the disclosure of which would involve the disclosure of any deliberation or advice of the State Executive Council, other than information or matter contained in a record by which an act of the Governor, acting with the advice of the Executive Council, was officially published; (c) information or matter the disclosure of which would involve the disclosure of – (i) any opinion, advice, or recommendation given, obtained, prepared, or recorded; or (ii) any consultation or deliberation that has taken place – in the course of, or for the purposes of, bringing into existence a record of a kind to which subsection (1) applies; (d) information or matter communicated in confidence or on behalf of the Government of the Commonwealth or of another country or State or of a Territory of the Commonwealth or a person receiving the communication on behalf of any such Government, the disclosure of which would constitute a breach of that confidence; (e) information or matter the disclosure of which would prejudice relations between this State and the Commonwealth or between this State and another State or a Territory of the Commonwealth; (f) information or matter the disclosure of which would have a substantial adverse effect on the financial or property interests of this State or of a State authority or a local authority; (g) information or matter the disclosure of which would be reasonably likely to have a substantial adverse effect on the interests of this State or of a State authority or a local authority in or in relation to pending or likely legal proceedings; (h) information or matter the disclosure of which would constitute a breach of confidence; (i) information or matter the disclosure of which would – (i) prejudice the enforcement or proper administration of the law in a particular case; (ii) prejudice the fair trial of a person or the impartial adjudication of a particular case; (iii) contrary to the public interest, disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law; (j) information or matter the disclosure of which would involve the unreasonable disclosure of information relating to the personal affairs of a person, including a deceased person; (k) information or matter, including commercial or financial information, the disclosure of which would be likely to expose unreasonably to disadvantage the material interests of an industrial or trading business or undertaking. (5) Where a person makes available to the Archives Office a record that is not a State record, that person may, by notice in writing given to the State Archivist, impose such conditions as he considers appropriate – (a) prohibiting the State Archivist from making the record available for inspection by members of the public indefinitely or for such period as may be specified in the notice; (b) restricting indefinitely or during such a period the persons or the class of persons to whom or to which the State Archivist may make the record available for inspection; or (c) stipulating that the record shall not become the property of the Crown in right of Tasmania as provided by section 17 . (6) Any condition imposed under subsection (3) (b) or (5) in relation to a record may at any time be varied by the relevant authority or person concerned but not in such a way as to have retrospective effect or to impose any further prohibition or restriction in relation to the record, and a reference in this section to a condition shall be construed as including a condition that is varied under this subsection. (7) Where, at the expiration of 25 years from and including the date on which a State record came into existence, the record is a State archive which is subject to a condition by virtue of subsection (1) , the record shall cease to be subject to the condition unless, at or before the time when the record was deposited in the Archives Office, a condition was imposed under subsection (3) (b) – (a) prohibiting the record from being made available for inspection by members of the public after the expiration of that period of 25 years; or (b) restrict