Public Records Regulations 2023

The Regulations introduce or define four key concepts. A public user is any member of the public who inspects a public record or uses facilities provided by the Public Record Office (regulation 5). This includes both casual visitors and serious researchers, and the definition is broad enough to cover anyone physically present on the premises for those purposes. The Reading Room is defined simply as the reading room facilities provided by the Public Record Office - it is the physical space where public records are made available. The term facilities includes building facilities and amenities of the building facilities, which presumably covers toilets, lockers, photocopiers, and the like, though the Regulation does not enumerate them. Device is defined inclusively to mean a computer or other digital technology provided by the Public Record Office and a personal device. This means a user’s own laptop, tablet, or smartphone falls within the scope of regulation 6, which prohibits disruptive use, access to offensive material, and behaviour that could damage records.

Prescribed records are not defined in the Regulations themselves; the term comes from section 16(1) of the Public Records Act 1973, which allows the Governor in Council to declare certain records to be prescribed records. Regulation 10 then prescribes the form that the owner of such a record must use to notify the Keeper of Public Records of possession (Schedule 3). That form requires the owner’s name, address, contact details, a description of the record, a declaration of custody, and an acknowledgement that the owner understands their obligations under the Act.

The fee structure uses fee units as defined in the Monetary Units Act 2004. The value of a fee unit is fixed annually by the Treasurer and published in the Government Gazette. For 2023-24 it was $15.90. The fees for copying are set per page or per part thereof, with different rates for oversized documents (1.3 fee units per 16 pages or part) and standard A4 documents (1.3 fee units per 50 pages or part). There is also a $5.00 surcharge per request for printing digital copies. The only other service fee is $5.00 per certificate issued under section 22(2) of the Act, which certifies the authenticity of a public record.

The concept of disruptive behaviour is central to the inspection conditions. Regulation 6 prohibits behaviour that is disruptive, aggressive, offensive, intentionally damaging to facilities, or likely to damage records. The list of prohibited actions is non-exhaustive: leaning on records, marking them, folding them anew, or tracing from them are all specifically banned. Items that may conceal records (bags, clipboards, folders, plastic sleeves) and items that may damage records (pens, food, drink) are barred from the Reading Room.

The Regulations directly affect three groups. First, public users - any member of the public who wishes to inspect public records held by the Public Record Office Victoria or to use the Reading Room facilities. This includes historians, genealogists, journalists, lawyers, students, and any person with a research or personal interest in the records. They must comply with the behavioural conditions under regulation 6 or risk being asked to leave under regulation 7. They must also pay the prescribed fees for copies and certificates, which are set in fee units that increase each year.

Second, owners of prescribed records. These are private individuals or entities that have custody of records declared to be prescribed records under section 16(1) of the Public Records Act 1973. The Regulations impose an obligation to lodge a notice of possession using the prescribed form (Schedule 3). The owner must identify themselves, describe the record, state where it is held (or name the person who holds it), and acknowledge that they have been informed of their obligations under the Act. This requirement is not voluntary: section 16(2) of the Act mandates the giving of notice, and the Regulations merely specify the form in which that notice must be given. Failure to lodge a proper notice may expose the owner to enforcement action under the Act, though the Regulations themselves do not create a penalty for non-compliance.

Third, Public Record Office staff and the Keeper of Public Records. The Regulations give staff the authority to request a non-compliant public user to leave the premises. They also determine the fees that the Public Record Office may charge for copies and certificates. The Keeper of Public Records receives the notices of possession from owners of prescribed records.

Indirectly, the Regulations affect any business or organisation that relies on public records for compliance, due diligence, or research. Law firms conducting historical property searches, title companies, and media organisations may face higher costs as fee units rise over time. The ban on pens, food, drink, bags, and folders in the Reading Room may inconvenience researchers but is designed to protect the physical integrity of the records. For the general public, the Regulations represent a modest expansion of the state’s ability to control behaviour in a public archive, but the conditions are largely standard across similar institutions worldwide.

The Regulations impose several duties on public users. Under regulation 6, a public user must not behave in a manner disruptive to other users, including through the disruptive use of a personal device. This covers loud conversations, phone calls, or any noise that disturbs others. The duty extends to not behaving in an aggressive, offensive, or otherwise unacceptable manner towards other users or Public Record Office staff. A public user must not intentionally damage facilities provided by the Public Record Office. They must not access offensive material, including pornography, on any device while in the Reading Room, whether using the Public Record Office’s equipment or their own laptop or phone. They must not behave in a manner that may damage any public record in the custody of the Public Record Office. The regulation gives five specific examples: leaning or writing on records, marking records, folding records anew, and tracing from records. The list is non-exhaustive, so any behaviour that risks damage is likely caught.

Further, a public user must not bring into the Reading Room any item that may damage a public record, including pens, food, and drink. They must also not bring items within which a public record may be concealed, including bags, containers, clipboards, folders, and plastic sleeves. Finally, they must not bring any item reasonably capable of interfering with the preservation and security of any public record. This gives staff wide discretion to exclude any object they consider a risk.

If a public user breaches any of these duties, the Public Record Office may request them to leave the premises (regulation 7). The right to remain is contingent on ongoing compliance. The Regulations do not specify whether the request is a direction or whether force may be used to remove the person; the underlying Act or general law would govern trespass consequences.

Rights of public users include the right to inspect public records and use facilities, subject to the conditions. The right to obtain copies of records is available on payment of the prescribed fees under regulation 8 and Schedule 1. Users may also request a certificate under section 22(2) of the Act for a fee of $5.00 per certificate (Schedule 2). There is a right to use personal devices, but subject to the prohibition on disruptive or offensive use. There is no explicit right to challenge a removal request within the Regulations, though general administrative law principles would apply.

For owners of prescribed records, the duty is to lodge a notice of possession using the form in Schedule 3. The form requires the owner to acknowledge that they have read and understood information provided by the Public Record Office about their obligations under the Public Records Act 1973. This acknowledgement may have legal significance, as it could be used as evidence that the owner was informed of their duties. The owner must indicate whether the record is in their custody or, if not, provide details of who has custody.

The Regulations do not create any monetary penalties, infringement offences, or criminal sanctions. The only enforcement mechanism expressly provided is regulation 7: a public user who does not comply with any of the conditions in regulation 6 may be requested to leave the premises of the Public Record Office. This is a low-level administrative measure. There is no power to impose fines, seize property, or ban the person from future access, though repeated non-compliance could lead to a refusal of entry under the Public Record Office’s general management powers. The Regulations do not specify what happens if the person refuses to leave - that would be dealt with under trespass law or the general law of the land.

For owners of prescribed records, regulation 10 and Schedule 3 prescribe the form for the notice of possession, but the Regulations do not attach any penalty for failing to lodge it, or for lodging a false or incomplete notice. The underlying Public Records Act 1973 may contain enforcement provisions for non-compliance with section 16(2), but the Regulations themselves are silent. Compliance with the prescribed form is mandatory only in the sense that a notice not in that form may be rejected by the Keeper. The practical consequence of failing to give notice could be that the Keeper takes steps under the Act to secure the record, but that is outside the scope of these Regulations.

The fee provisions in regulations 8 and 9 are enforceable as a debt: if a user requests copies or certificates, they must pay the prescribed fee before the service is provided. There is no provision for waiver, reduction, or refund. The fees are calculated by reference to fee units under the Monetary Units Act 2004, so the actual dollar amount changes each financial year. The Public Record Office could refuse to supply copies until the fee is paid, but there is no late payment penalty.

In summary, the enforcement architecture of these Regulations is minimal. The main deterrent to non-compliance is the threat of being ejected from the Reading Room. For owners of prescribed records, the incentive to comply is likely the desire to avoid any adverse action under the Public Records Act 1973, which may carry its own penalties. The Regulations themselves do not expand state enforcement powers; they merely set out conditions and fees.

These Regulations are made under section 23 of the Public Records Act 1973, which is the primary legislation governing the management and preservation of public records in Victoria. The Regulations give effect to several provisions of that Act. Regulation 6 implements the duty of the Public Record Office to ensure public records are not damaged or stolen; it does not create any new statutory duties but rather specifies how users must behave. Regulation 7 provides a mechanism for enforcing those conditions. Regulations 8 and 9 set the fees authorised by the Act for copies and certificates; the Act itself may set maximum fees or require that fees be set by regulation. Regulation 10 prescribes the form for the notice of possession required by section 16(2) of the Act.

The Regulations explicitly reference the Monetary Units Act 2004 for the calculation of fees. That Act defines a fee unit and sets the mechanism for annual adjustments by the Treasurer. The value of a fee unit for the 2023-24 financial year is $15.90, and future values are published in the Government Gazette. This interaction means that the actual fees payable under these Regulations will increase over time without any further amendment to the Regulations themselves. Compliance costs for users will therefore rise in line with inflation or as the Treasurer determines.

The Subordinate Legislation Act 1994 applies to these Regulations in two ways. First, section 5 of that Act imposes a ten-year sunset period, meaning the Regulations will automatically expire on 14 November 2033 unless remade. Second, the making of the Regulations was subject to the requirements of that Act, including the preparation of a regulatory impact statement if the anticipated costs exceeded a threshold. The endnote confirms the sunset date.

The Interpretation of Legislation Act 1984 governs how the Regulations are to be read. The explanatory notes at the end of the instrument confirm that headings, examples, diagrams, notes, and punctuation form part of the Regulations for instruments made on or after 1 January 2001. This is important for interpreting regulation 6, which includes a non-exhaustive list of prohibited items; the note about legislative items does not apply here because there are no penalties or examples in the body of the Regulations.

There is no mention of the Freedom of Information Act 1982, the Privacy and Data Protection Act 2014, or the Charter of Human Rights and Responsibilities Act 2006. However, those statutes may impose additional obligations on the Public Record Office in relation to access to records containing personal information. The Regulations do not override those Acts; they merely regulate the physical interaction with records. The ban on accessing offensive material in the Reading Room (regulation 6(4)) could interact with implied freedom of political communication or the right to freedom of expression under the Charter, but the Regulations do not address this. Users concerned about such interactions would need to look to the broader legal framework.

The Public Records Regulations 2023 are a new instrument that revoked and replaced the Public Records Regulations 2013 (S.R. No. 139/2013). The Table of Amendments (endnote 2) states that there are no amendments made to the 2023 Regulations by statutory rules, subordinate instruments, or Acts. This means the text is as originally made on 14 November 2023 and commenced on 18 November 2023. The instrument is version number 001, indicating no amending versions have been published.

The revocation of the 2013 regulations is effected by regulation 4. The 2013 regulations had been in force for ten years and would have been due for sunset review. The 2023 regulations introduce several changes compared to the 2013 version, though the source does not list the differences. The fee schedule now uses fee units instead of fixed dollar amounts, which means fees will automatically adjust each year. The 2013 regulations likely had fixed dollar amounts that required amendment to keep pace with inflation. The conditions for inspection are largely similar but now explicitly include a prohibition on accessing offensive material, including pornography, on any device while in the Reading Room (regulation 6(4)). The definition of device now specifically includes personal devices, clarifying that the rules apply to laptops and phones brought in by users. The 2013 regulations may not have been as explicit on this point.

The endnote explains that the Regulations will sunset on 14 November 2033, ten years after the day of making. No amendments are expected unless the Parliament or the Governor in Council decides to vary the fees or conditions before then. Any future amendment would be made by a statutory rule, which would be published and would update the version number. As of the current version, there are none.

It is worth noting that the Public Records Act 1973 itself has been amended over the years, but those amendments are not part of these Regulations. The Regulations only reflect the Act as it stood at the time of making. Any future amendment to the Act could require corresponding changes to the Regulations, but that has not occurred.

There is no litigation history associated with this specific instrument. The Regulations are new (2023) and have not been the subject of any reported court proceedings. The source text contains no references to any cases, whether from Victoria, other Australian jurisdictions, or overseas. The Regulations are a fairly routine subordinate instrument that sets conditions and fees, so litigation is unlikely unless a user challenges a removal from the Reading Room or a fee is disputed as exceeding the statutory authority.

The predecessor 2013 regulations may have been considered in proceedings, but the source does not mention any. Similarly, the underlying Public Records Act 1973 has been the subject of some case law, but those cases would concern the interpretation of the Act rather than these Regulations. For a deep dive grounded solely in the source, it is safest to state that no litigation history is evident from the instrument itself.

If litigation were to arise, the likely grounds would include: (1) whether the conditions in regulation 6 are ultra vires the Public Records Act 1973 because they restrict access beyond what the Act permits; (2) whether the fees are manifestly unreasonable or unauthorised; (3) whether a request to leave under regulation 7 amounts to a denial of natural justice; and (4) whether the prohibition on bringing certain items into the Reading Room infringes on rights under the Charter of Human Rights and Responsibilities Act 2006 (if applicable). However, none of these have been tested. The Regulations are so new that no court has had an opportunity to interpret them. Practitioners should monitor any Victorian Civil and Administrative Tribunal or Supreme Court decisions that may arise in the future.

Several provisions in these Regulations may catch users off guard. The definition of device under regulation 5 includes not only computers provided by the Public Record Office but also a personal device. This means that using a personal smartphone or laptop to send a text or check email could be considered “disruptive use” if it disturbs others, and accessing any material that could be classed as offensive, including but not limited to pornography, is prohibited. A user who inadvertently opens a spam email containing explicit images could be in breach of regulation 6(4). The Public Record Office staff have broad discretion to determine what is offensive, and there is no definition of that term in the Regulations.

The prohibition on bringing items into the Reading Room is extensive. Regulation 6(6) prohibits any item that may damage a public record (pens, food, drink) and any item within which a record may be concealed (bags, containers, clipboards, folders, plastic sleeves). This means even an empty folder or a plastic document sleeve is not permitted. Researchers accustomed to taking notes on clipboards or using plastic sleeves to protect records will need to use only pencils (and likely only those provided by the Public Record Office). Laptops and tablets are presumably allowed because they are “devices” under regulation 5, but they must be used in a non-disruptive manner. The Regulation does not explicitly allow laptops, so there may be a tension: the definition of device includes personal devices, but the prohibition on items that could conceal a record could arguably include a laptop bag or a tablet cover. A cautious user should check with staff before bringing any such items.

The fees for copying are calculated in fee units, which change annually. The dollar amount a user pays may be different from the amount listed in the Schedule. The explanatory details state that the 2023-24 value is $15.90, but this will increase over time. A user who budgets for a fixed amount may be surprised. Additionally, the fee for digital copying of oversized documents is 1.3 fee units per 16 pages or part thereof, but the standard A4 rate is 1.3 fee units per 50 pages or part thereof. This means that copying a 17-page oversized document costs the same as copying a 32-page one, which is slightly higher than a proportionate rate. The $5.00 surcharge for printing digital copies applies per request, not per page, so a request for one printout and a request for 500 printouts both incur the same surcharge.

The notice of possession form (Schedule 3) includes an acknowledgement that the owner has “read and understood any information provided” by the Public Record Office about their obligations. This could be used against the owner if they later claim ignorance of the law. The form also requires the owner to name the person who has custody if the record is not in the owner’s possession. This may raise privacy concerns for the person named, who might not expect to be identified. There is no requirement that the owner verify the accuracy of that information before submitting the form.

For a public user wishing to inspect records at the Public Record Office, compliance is straightforward. Before entering the Reading Room, leave all pens, food, drink, bags, containers, clipboards, folders, and plastic sleeves in lockers or with staff. Only bring permitted items such as pencils, personal devices (laptops, tablets, phones), and paper (single sheets, not bound in folders). Once inside, use devices only in a way that does not disturb other users: keep volume low, avoid phone calls, and do not access any material that could be considered offensive, including pornography or graphically violent content. Handle all records with care: do not lean on them, write on them, fold them, trace from them, or otherwise mark them. Follow any additional instructions from staff. If staff request you to leave for non-compliance, do so calmly; there is no right to appeal within the Regulations, though you may later contact the Public Record Office to contest the decision. To obtain copies, request digital copies or printing at the counter and pay the then-current fee-unit amount. For a certificate under section 22(2) of the Public Records Act 1973, pay the $5.00 fee per certificate.

For an owner of a prescribed record, compliance requires lodging a notice of possession with the Keeper of Public Records using the form in Schedule 3. Fill in your name, address, phone number, email address, and a full description of the record. Tick the appropriate box to indicate whether the record is in your custody or not. If it is not in your custody, provide the name and contact details of the person who has custody. Read any information provided to you by the Public Record Office about your obligations under the Public Records Act 1973 and then sign and date the form. Ensure the form is submitted promptly; the Act does not specify a time limit, but delay may risk non-compliance. Keep a copy for your records. If you later transfer custody or lose the record, you should notify the Keeper separately, as the Regulations do not cover changes in possession.

For Public Record Office staff, compliance involves enforcing the conditions consistently. Staff should clearly display the prohibited items list and provide lockers for storage. They should politely but firmly request non-compliant users to leave. When accepting notices of possession, staff should verify that the form is complete and signed. For fee collection, staff should ensure the correct fee-unit value is applied for the financial year and that the conversion to dollars is correctly calculated and rounded to the nearest 10 cents. All fees should be recorded and receipts issued.