Australian Society of Archivists

Theme Issue: Recordkeeping and the Law

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Livia Iacovino
The Nature of the Nexus Between Recordkeeping and the Law
The way we view the relationship of recordkeeping and the law will depend on our understanding of these terms and the constructs we build from these understandings. This article explores the recordkeeping/law nexus from the perspective of the role of records and recordkeeping in social systems and the application of this approach to the Australian regulatory context. The subject classification of Australian law and its major legal principles are an essential link to understanding their relevance to recordkeeping activities, and how the law has viewed records and recordkeeping, provides another dimension to the recordkeeping/law nexus.

Peter MA. Gray
Saying It Like It Is: Oral Traditions, Legal Systems and Records
The High Court of Australia in Mabo not only recognised native title, it made Australia officially a legally pluralist nation. Indigenous people have to prove the content of their legal systems to succeed in native title cases. Aboriginal Legal systems differ from the Anglo-Australian legal system in that they depend on oral accounts and are characterised by restrictions on the possession of knowledge. The need to make information public, to prove the existence and content Of an indigenous Legal system, may involve breaches of that very system. Indigenous legal systems value the spoken word, which is as less authoritative than the written word in the non-indigenous Legal system. In native title cases, problems will arise with respect to the hearsay rule, written records that are inconsistent with oral evidence, and cross-cultural communication. Transformation of oral accounts into written records, in the form, of transcript, judgments and reports, can also have profound effects on Aboriginal legal systems themselves.

Ian Freckelton
Records As Reliable Evidence: Medico‑legal Litigation
Recordkeeping in all litigation is fundamental to decision-making by courts and tribunals. This is particularly so in cases where malpractice is alleged against healthcare practitioners. With records compiled by doctors, nurses, chiropractors and dentists becoming more readily accessible to patients, the onus falls upon healthcare practitioners to ensure that such records contain sufficient information to communicate the important aspects of patient-practitioner interaction. Failure to do so can result in significant forensic disadvantage. Compilation of healthcare records in a form which makes subsequent interference with them difficult but enables a clear perspective upon the key aspects of practitioner-patient communication has much to commend it both from the point of view of the quality of healthcare provision and also from the point of view of protecting practitioners and patients against erroneous allegations and misplaced recollections.

Madeline Campbell
Government Accountability and Access to Information on Contracted-out Services
Since the introduction of the Federal Government's administrative law legislation during the 1970s and 1980s, Australians have been used to obtaining access to information on the manner of delivery of government services especially to themselves. The rights and obligations given by the Archives Act 1983, Freedom of Information Act 1982 and the Privacy Act 1988 are of particular relevance. Access to information allows scrutiny of' the operations of government and accountability through openness. However this legislation applies only to information held in the public sector In the new era of the private sector delivering se7vices under contract to government, this article asks Y' information access rights will be lost with the resultant loss of government accountability.

Simon Fisher
The Archival Enterprise, Public Archival Institutions and the Impact of Private Law
The thesis of this paper is that the law of obligations provides the primary legal framework within which to understand the legal dimensions of the archival enterprise, particularly as the records continuum assumes overarching importance in modern archival science. There is an important change to the Private law concept of an obligation, and that is the sub‑set of the law of obligations known as involuntary obligations is harnessed for the purpose of imposing duties on legal actors to facilitate the operation of the archival enterprise. There is a re-conceptualisation of obligations that draws them out of remaining a purely private law phenomenon into a public law setting. At the same time, an inherently private legal phenomenon, property, is a vehicle that can be used by archival institutions to bolster the effectiveness of their functions. Both the law of obligations and the law of property work in tandem to explain the operation of the archival enterprise.

Melissa de Zwart
Information Wants to Be Free: How Cyberspace Challenges Traditional Legal Concepts of Information Use and Ownership
It is only a matter of time before all aspects of information management move on‑line. Whilst there are currently no Internet related cases dealing specifically with archives and records management, relevant Principles can be drawn from the existing case law in other areas. This article will examine the various ways in which attempts have been made to extend existing legal concepts to the changing nature of information on the Internet, focussing on issues arising from defamation, copyright, hypertext linking and content regulation. By examining a number of cases which have arisen both in Australia and overseas, it will assess the varying success that the law has had in accommodating the ever increasing range of issues created by the Internet and the impact that technology has had on information providers.

Review Article

Chris Hurley
From Dust Bins to Disk-drives and Now to Dispersal: The State Records Act 1998 (New South Wales)
In May 1998, the New South Wales Parliament enacted a new State Records Act. The author was consultant to the NSW Archives Authority in developing this legislation. Using an analytical matrix he originally worked up in 1994, he argues that the new Act represents a definite departure from all previous records legislation' in Australia and can be seen as a stepping stone to the kind of legislation we need for a post-custodial future.

Review Commentary

Colin Smith
Saving our Census and Preserving our History: Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs
This commentary reviews the background to this report and reports on its significance as a breakthrough in the campaign against the Australian policy of retaining only de-identified and aggregated data from its census. A review of the report's arguments and evidence suggests some shortcomings. However, a slight

 

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