Archives (Discretionary Service Charges) Determination 2023

Discretionary service. The determination draws its authority from section 69A of the Archives Act, which empowers the Director-General to determine charges for “discretionary services” provided to Commonwealth institutions. The term is not redefined in the determination, so it takes the meaning from the Act: services that the Archives is not required by law to provide but chooses to offer on request. This contrasts with compulsory preservation or access obligations under other parts of the Archives Act.

Cost recovery principle. For several items (such as storage, transport, archival containers, bulk withdrawal, digitisation of files over 400 pages, delivery media, postage, and offsite training), the charge is “an amount equal to, or less than, the cost of providing the service”. This is a cap: the Archives cannot profit from these services, but it is not obliged to fix a single price. It must calculate the actual cost for each specific engagement. This creates a risk of cost allocation disputes, as the determination does not define how cost is to be calculated (e.g., direct versus indirect costs). The Archives retains discretion to charge below cost, perhaps for policy reasons or as a matter of administrative convenience.

Non-corporate vs corporate Commonwealth entity. These terms are imported from the Public Governance, Performance and Accountability Act 2013 (PGPA Act). Non-corporate entities (e.g., government departments) are not subject to income tax or GST in the same way as corporate entities (e.g., statutory authorities). The determination’s separate GST columns mean that the same service will have a different nominal price depending on the entity’s legal form. For example, research assistance costs a non-corporate entity $82.50 per hour but a corporate entity $90.75 per hour (the extra being notional GST). This is not a discount for non-corporate entities; it simply reflects that corporate entities must pay GST and may later claim input tax credits if registered.

Item definition. The determination includes an elaborate definition of “item” for the purposes of digitisation charges, especially for audio-visual records. A paper file in parts treats each part as a separate item; a photographic negative film strip treats each frame as a separate item; an audio-visual title may consist of multiple items if it has separate image and sound components or is divided by length. This definition directly affects the total charge: a motion picture film with a separate sound component is “a set” under item 21, attracting $746.84 per set (GST exclusive), whereas a standard motion picture film with soundtrack built in is a single item at $495.26 under item 20. Users must map physical holdings to these definitions to estimate costs.

Fixed versus variable charges. Fixed charges (e.g., $38.08 for small file digitisation) apply regardless of the Archives’ actual cost. Variable charges (cost recovery) apply where the cost is inherently unpredictable - for example, very large files may require special handling. The fixed charges may over-recover or under-recover the actual cost; the Archives absorbs the difference.

The determination directly affects all Commonwealth institutions that request discretionary services from the National Archives. This includes over 200 non-corporate entities (such as the Department of Defence, Department of Home Affairs) and a similar number of corporate Commonwealth entities (such as the Australian Broadcasting Corporation, CSIRO, and various statutory commissions). The charges apply only to services provided to these institutions, not to members of the public (who have separate access and copying provisions under the Archives Act). However, the public may be indirectly affected if institutional clients pass on the cost of acquiring records or digitisation services through fees or charges.

Within each institution, the determination affects budget holders who authorise Archives services: records managers, legal officers, and compliance staff. The cost recovery items (e.g., transport, storage) create uncertainty for institutional budgets because the final charge depends on the Archives’ cost calculation, which may vary with distance, volume, and handling requirements. Fixed charges offer predictability but may be higher or lower than the actual cost. The two-tier GST system also affects cash flow: a corporate entity must pay the GST-inclusive price up front, though it may claim the GST back if it is a registered entity with an ABN. Non-corporate entities generally cannot claim input tax credits, so the GST exclusive price is their final cost, but they may still need to deal with GST reporting if they have a tax invoice.

The determination also affects Archives staff and contractors who must apply the correct charge table and calculate cost for variable items. The need to distinguish between corporate and non-corporate clients adds administrative overhead. Records managers in agencies with mixed holdings (paper, audio-visual, photographic) must understand the item definitions to avoid underpayment or disputes. Finally, the repeal of the two 2021 determinations means that any continuing arrangements under those instruments must be renegotiated or aligned with the 2023 schedule.

The determination does not affect private contractors or members of the public who purchase copies of records under standard Archives procedures; those are governed by separate provisions (e.g., section 72 of the Archives Act dealing with copying fees). Only “Commonwealth institution” is the defined chargeable customer.

Archives’ right to charge. Section 6 of the determination, read with section 69A of the Archives Act, gives the National Archives a statutory right to demand and recover the prescribed charge for any discretionary service it provides. This is not a duty to charge; the Archives may waive or reduce a charge (e.g., for courtesy or policy reasons) as long as the amount does not exceed the cap for cost-recovery items, or for fixed items it must charge the exact amount unless it has a separate legal power to waive. The determination creates no obligation to provide the service - that remains at the Archives’ discretion.

Institutions’ obligation to pay. A Commonwealth institution that requests a discretionary service impliedly agrees to pay the charge set out in the determination. Failure to pay may result in the Archives refusing to provide further services or pursuing the debt as a civil debt due to the Commonwealth under general law. There is no separate penalty provision in the determination itself; the Archives would rely on common law debt recovery or possibly the PGPA Act’s provisions for recovering overpayments.

Right to receive cost-based calculation. For variable cost items, an institution has the right to request that the Archives provide the cost basis for the charge, since the determination does cap the amount to “the cost of providing the service”. If the Archives charges a fixed amount for a variable item (other than the fixed items), it would be acting beyond power. The institution could dispute the charge and require the Archives to demonstrate that the amount does not exceed cost. The determination does not specify a mechanism for such a dispute, so it would fall to administrative review or complaint.

Archives’ duty not to exceed prescribed amounts. For fixed-price items, the Archives must charge exactly the amount in the table (adjusted for GST). It cannot add surcharges or discounts unless the item explicitly allows cost recovery. For cost-recovery items, the Archives must ensure the charge is “equal to, or less than, the cost”. This imposes an internal accounting obligation to track costs accurately and not to inflate them with unrelated overhead.

Right to choose service level. The determination does not prescribe any service standard or turnaround time. The right to a service is not created by the charge schedule; it is a contractual or administrative arrangement. If the Archives provides a service but does not deliver the expected output, the institution’s remedy lies in the terms of the arrangement, not the determination.

The determination itself does not create any criminal or civil penalty provisions. Enforcement of the charges is indirect. Non-payment by a Commonwealth institution is not a criminal offence but may lead to the Archives withholding further services or initiating debt recovery under the Public Governance, Performance and Accountability Act 2013 (including garnishee powers or offset against future payments). Since the determination is a legislative instrument, any contravention of its terms (e.g., charging more than the prescribed amount) could theoretically be challenged as an invalid exercise of power under the Archives Act, but there is no specific penalty for the Archives or its officers for overcharging. The instrument is enforceable only through administrative law: an aggrieved institution could seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 or seek a declaration that a charge is ultra vires.

For the Archives, failure to comply with the determination could expose it to criticism from the Auditor-General, parliamentary committees, or the Ombudsman, but not to monetary penalties. The determination does not set any deadlines or reporting obligations. The main enforcement risk is reputational: if the Archives charges above the fixed rate or exceeds its cost for a capped item, it risks legal challenge and adverse findings.

It is also worth noting that the determination applies only to charges for services. It does not impose obligations on institutions to pay unless they agree to receive the service. There is no penalty for an institution that refuses to pay after receiving a service; the Archives would need to sue for breach of contract or recover the debt under the PGPA Act, which treats amounts due to the Commonwealth as debts. This is standard and not specific to this instrument.

The determination is made under section 69A of the Archives Act 1983, which empowers the Director-General to determine charges for discretionary services by legislative instrument. As a legislative instrument, it is subject to disallowance by either house of Parliament and must be registered on the Federal Register of Legislation. Its legal force stems from the Archives Act, and it cannot override or modify the Archives Act itself.

The determination expressly incorporates definitions from the Public Governance, Performance and Accountability Act 2013 (PGPA Act) for “corporate Commonwealth entity” and “non-corporate Commonwealth entity”. This means the classification of a given institution under the PGPA Act directly determines which column of the charge table applies. Any amendment to the PGPA Act definitions could indirectly affect the determination’s application, though a new determination would likely follow.

GST is incorporated by reference to the A New Tax System (Goods and Services Tax) Act 1999. The determination uses the definition of “GST” from that Act (section 195-1). The two-tier pricing assumes that corporate entities are generally registered for GST and can claim input tax credits, while non-corporate entities are not liable for GST on internal government transactions. This alignment with tax law avoids a conflict but creates a compliance burden: the Archives must know the GST status of each entity at the time of charging, and must issue tax invoices to corporate entities to enable their input credit claims.

The determination does not affect the Archives’ obligations under other parts of the Archives Act, such as the duty to preserve records (section 6) or the public access provisions (Part V). It deals only with discretionary services, not with mandatory preservation or access. The determination also does not interact with the Freedom of Information Act 1982, though FOI requests for records held by the Archives are subject to separate fees.

The repeal of the two 2021 determinations (Schedule 1) ensures that from 11 September 2023 only the 2023 determination is in force. Any ongoing contracts or arrangements that referenced the old charges would need to be amended or terminated, unless they contain a clause anticipating changes to statutory charges.

The Archives (Discretionary Service Charges) Determination 2023 was made on 20 July 2023 by the Director-General of the National Archives, Simon Froude, and commenced on 11 September 2023. It repealed and replaced two earlier instruments: the Archives (Discretionary Service Charges) Determination 2021 and the Archives (Discretionary Service Charges - Agency Digitisation) Determination 2021. Both 2021 instruments are wholly repealed by Schedule 1. No other amendments to the 2023 instrument appear in the text provided.

The decision to consolidate two instruments into one likely simplifies administration: the 2021 scheme separated general discretionary charges from agency digitisation charges, but the 2023 determination merges them into a single set of tables. The charges themselves appear to have been updated from the 2021 rates, though the user did not provide those rates for comparison. The instrument does not include an amendment history table; it is the current version. Users must assume it is freely available on the Federal Register of Legislation, where any future amendments will be recorded.

No transitional or savings provisions are included; the instrument simply repeals the old determinations in full. This means that any services provided on or after 11 September 2023 must be charged under the new rates, even if requested before that date. Institutions should ensure that existing work orders or contracts are re-priced or updated.

As a legislative instrument, it may be subject to periodic review and disallowance. The instrument states it is made “under section 69A” of the Archives Act, which is a power to “determine, by legislative instrument, the amount or rate of charge for a discretionary service”. Future instruments may update rates or add new services.

The source text does not mention any litigation, and as of the date of writing there is no reported case law specific to the Archives (Discretionary Service Charges) Determination 2023. Given that the instrument was made in July 2023 and commenced in September 2023, it is very recent. There may be historical cases concerning the predecessor determinations, but none are referenced. The Archives Act generally has little litigation on charges, as the amounts are modest and disputes are usually resolved through negotiation. However, any challenge would likely be on the grounds that:

• The Archives exceeded its power by charging more than the cost for a cost-recovery item.
• The Archives misclassified an entity as corporate or non-corporate, leading to an incorrect GST treatment.
• The Archives charged a fixed amount for a service that should have been cost-recovery (or vice versa).

No such cases have been found. The instrument itself does not create a right of review, so judicial review under the ADJR Act or an appeal to the Administrative Appeals Tribunal would be the avenue for affected institutions.

The cost recovery cap is not self-executing. For items where the charge is “an amount equal to, or less than, the cost of providing the service”, the Archives must determine cost for each occasion. There is no methodology prescribed, so the Archives could allocate overhead arbitrarily. An institution expecting a low-cost service may receive a high bill if the Archives includes extensive staff time or facility costs. There is no right to an itemised breakdown in the determination.

The item definitions for audio-visual records can dramatically multiply charges. A film that consists of a mute picture and a separate sound reel is a “set” under item 21, charged at $746.84 per set (GST exclusive). If the Archives treats each reel as a separate item, the total could be far higher. The definition says “each of the parts is a separate item”. An institution that orders digitisation of an audio-visual title should confirm in advance how many items the Archives intends to bill.

The fixed charges for paper digitisation are per file, not per page. For example, digitising a standard file (51-100 pages) costs $81.25, which is about $0.81 to $1.59 per page. But a small file (<11 pages) costs $38.08, which could be over $3 per page. Institutions with many small files may face disproportionately high per-page costs. They could bulk them into a single larger file to reduce cost, but that may not be feasible if files are separate series.

“Sentencing” and “transfer accessioning” are both charged at $317.44 per shelf metre. These may appear similar but sentencing involves appraising records for retention or destruction, while transfer accessioning is the process of formally transferring records into Archives custody. An institution that engages the Archives for both services on the same set of records will be charged twice per metre. The determination does not allow bundling.

The “research assistance” charge of $82.50 per hour may be triggered even if the institution’s staff perform the work. If an Archives staff member provides direction or supervision, that may constitute research assistance. The charge applies per hour, with no minimum. Institutions should ensure they understand when a consultation crosses from casual advice into billable research assistance.

Certification of true copy (items 24-26) includes postage for domestic or overseas. But the charge for domestic ($42.64 for up to 10 pages) includes domestic postage; overseas postage is $58.38. If the mailing address changes after the service, the Archives may charge the lower domestic rate even if the document ends up overseas. Conversely, an institution that specifies domestic but later redirects could be invoiced for the higher rate. Check the terms of service.

Self-service printing from RecordSearch (item 29) is charged at $1.41 per page, identical to black-and-white photocopying (item 27). But self-service printing is done by the user, so the Archives’ cost is lower. The charge may be a convenience fee rather than cost recovery. There is no distinction between A4 and A3 for self-service, whereas photocopying includes both sizes.

The “delivery media” charge (item 22) is “an amount equal to the cost of providing the delivery media”. If the Archives uses a USB drive, the charge is the wholesale cost of the drive. But if it uses a proprietary format, the cost could include royalties or special handling. Again, no cost breakdown is required.

Offsite professional training (item 36) is cost recovery. This could cover travel, accommodation, and staff time. An institution requesting training offsite could face a bill far exceeding the training’s perceived value, if the Archives includes high overheads.

For Commonwealth institutions, compliance begins with correctly identifying whether the entity is a non-corporate or corporate Commonwealth entity under the PGPA Act. This determines which column of the charge table applies. If in doubt, consult the entity’s legal status document or the PGPA Act registers. Pay the charge as invoiced; if the invoice shows the wrong GST treatment, request a corrected invoice before paying.

When requesting a service, obtain a written quote or estimate from the Archives, especially for cost-recovery items (storage, transport, very large files, delivery media, offsite training). The quote should state the maximum charge. Keep records of the quote and the service request. For fixed-price items, confirm the Archives will apply the correct table rate. For multi-part audio-visual items, ask the Archives to confirm the number of items or sets to be billed.

Audit internal records to ensure that any records transferred to the Archives are accurately described and housed. The determination imposes a cost if records need description, barcoding, boxing, or reconciliation (item 2). Doing this work internally before transfer may be cheaper than paying the Archives’ cost-recovery charge.

When digitising paper files, consider grouping small files into larger digitisation orders if the institution can make a single file of multiple folders. But be aware that the Archives definition of “file” is the Archives’ own recordkeeping unit; bundling may not be allowed if the records are in separate series.

For ongoing storage arrangements with the Archives, check whether the existing contract specifies the charge and whether it incorporates the determination by reference. If the contract predates 11 September 2023, it may have been superseded by the repeal of the 2021 determination. Renegotiate to base charges on the 2023 schedule.

For corporate entities, ensure that the Archives issues a tax invoice that includes the GST amount. Keep a paper trail for input tax credit claims. Non-corporate entities do not need a GST inclusive invoice, but they should still request an invoice showing the GST exclusive amount to confirm correct pricing.

The Archives itself must comply by implementing systems that calculate the correct GST treatment for each entity. For cost-recovery items, the Archives should develop a transparent cost allocation policy and document the costs for each job. This protects against legal challenge and facilitates audit. The Archives should also maintain a version control record of the determination and ensure that any future updates are promptly applied.

Finally, any institution that believes it has been overcharged should first contact the Archives for an explanation. If unresolved, the institution may request a formal review under the Archives Act or the PGPA Act. The determination does not provide a formal dispute resolution mechanism, so the institution should rely on correspondence and possible ADJR review. Keeping detailed records of the service request, the work done, and the invoice is essential.