21.
record[1]. Division 5 of Pt V also confers power on the Minister, in accordance with arrangements approved by the Prime Minister, to cause all records in a particular class of Commonwealth records not in the open access period to be available for public access[2]. The open access period for a Commonwealth record that came into existence before 1980, as has already been noted, begins on 1 January 31 years after the year of creation of the record[3].
51 Where, in the ordinary course of the administration of the Archives Act, access is given to a Commonwealth record that is required to be made available for public access because it is in the open access period or that is authorised by the Minister to be made available for public access, "no action for defamation, breach of confidence or infringement of copyright lies, by reason of the authorizing or giving of the access, against the Commonwealth or any person concerned in the authorizing or giving of the access"[4].
52 Having the potential to bear on an arrangement entered into by the Australian Archives before the commencement of the Archives Act is a transitional provision, s 70(3), which provides:
"Where, immediately before the commencement of Part II, any records were in the custody of the establishment known as the Australian Archives, as existing at that time, under arrangements by which the custody of the records was accepted from a person other than a Commonwealth institution by the Commonwealth, or by an authority or person acting on behalf of the Commonwealth, those arrangements (including any provision of those arrangements concerning access to or disposal of those records) have effect from that commencement as if they were made, after that commencement, by that person with the Archives, and subsection 6(2) applies accordingly."
53 The relevant effect of s 70(3) is that an arrangement by which the Australian Archives before 6 June 1984 accepted custody of records from a person other than a Commonwealth institution must be given effect under the Archives Act as if the arrangement had been made by the Archives in the performance of the function conferred by s 5(2)(f). As spelt out in s 70(3), such a prior arrangement in that way
