Australian Society of Archivists
1999 Conference

Water Dripping on Stone: Development of New Archival Legislation in Western Australia

Jenny Edgecombe

(See also on this website: Lobbying Guidelines for ASA Council)

• 1. Introduction
• 2. The Royal Commission - First Steps
• 3. The Discussion Paper - A Setback
• 4. Where Do You Start?
• 5. Making an Impact with Submissions
• 6. The Commission on Government
• 7. The Committee to Make Recommendations on the Recommendations on the Recommendations
• 8. New Moves
• 9. Renewed Vigour
• 10. Other Contacts
• 11. RMAA Campaign
• 12. Media Releases
• 13. Final Stages
• Footnotes

1. Introduction

This is not a critique of the proposed State Records Bill for Western Australia. It is about the lobbying efforts of the local branch of the Australian Society of Archivists Inc. (ASA) during the development of the legislation. I have extracted some reflections on what the branch has learnt about lobbying along the way. One of the problems of an organisation like the ASA is a lack of continuity in local branches. New waves of members are continually learning all over again how to achieve something. This paper may assist in that learning process.

We did not change the face of this legislation dramatically, but through being as persistent as water dripping on stone, we believe we have had some impact on the final shape of the legislation.

2. The Royal Commission – First Steps

The main legislative basis for public recordkeeping in Western Australia is contained in the Library Board of Western Australia Act 1951-1983. It sets down what the State Archivist may do rather than what the government agencies must do. It is distinctly lacking in penalties for non-compliance. It is no longer an adequate basis for public recordkeeping policies. Today the requirement is for an organised program of accountability in government agencies, and ensuring that an adequate record of the government’s decision-making is maintained.

There had been earlier efforts to replace the old Library Board Act, but the real impetus for a new bill came from The Report of the Royal Commission into the Commercial Affairs of Government and Other Matters released in 1992. As a very new arrival in the state, I had been spellbound by the Commission’s daily revelations of non-existent and disappearing records in public life. One of the Report’s recommendations was,

‘that a separate and independent archives authority be established, acting under its own legislation…’⁽¹⁾

The Australian Society of Archivists Inc (ASA) took its first steps by regularly inviting representatives of the two main political parties to indicate their positions.

Phillip Pendal, Liberal Shadow Minister for the Arts, addressed an ASA branch meeting in 1992. In late 1992 Premier Carmen Lawrence replied to a letter from ASA National President Paul Brunton. In May 1993 Cheryl Edwardes, Attorney-General in the new Coalition government, addressed the Annual General Meeting of the WA Branch of the ASA. All three indicated that their governments would implement the recommendations of the Royal Commission regarding the establishment of an Archives Authority.

ASA members felt smugly that their lobbying had been successful and looked forward to an independent archives authority backed by strong new legislation with teeth.

3. The Discussion Paper – A Setback

In 1994, the Minister for the Arts, Peter Foss, issued what he called a Discussion Paper on proposed new archives legislation(2). Unfortunately it more closely resembled a completed piece of legislation than a paper for discussion. The discussion paper was so tightly structured, with no alternative models offered, that it was obviously going to be very difficult to change it. There had been no public consultation since well before the Royal Commission so ASA members were anxious to be given a genuine opportunity for input.

The paper introduced a model that divided responsibility for monitoring from service delivery. It offered the appearance of independence without delivering the reality. Yes, there would be an independent body, a Public Records Commission, whose membership was unlikely to come with a recordkeeping background.⁽³⁾ This body reported directly to Parliament. Unfortunately the Public Records Office, carrying most of the workload and making the majority of the recommendations to the Commission, would remain within the Library and Information Service of Western Australia (LISWA). It would not be separate and independent, nor acting under its own legislation. It would continue to be, ‘one of a number of programs fighting for recognition and resources in a custodially-oriented library environment rather than the regulatory and audit-oriented records management environment it would require’.⁽⁴⁾

4. Where Do You Start?

This is where the ASA lobbying really started. The possibility that the legislation would not provide a genuinely independent archives authority was not our only concern with the Discussion Paper, but it underpinned most of the other concerns.

In summary, this is what we started with:

• Myself as a keen Branch Convenor, but with no political or media contacts and no experience of lobbying. I had grand ideas at the time for raising the local profile of the ASA on a great many fronts, so did not focus exclusively on the legislation. In hindsight, that may have been a mistake, given our small numbers in WA.
• A small group of very busy ASA members who were enthusiastic and interested, but limited in the time they could spend on this. Most of them were as inexperienced in lobbying as I was. Our numbers were restricted further because some of our active branch members were employees of State Archives and felt, for various reasons, that their participation was inadvisable.

We also had:

• The support and interest of ASA Council with a likelihood of some funding. (5)
• The support of the WA branch. In the absence of opposition, you assume support. We reported regularly at Branch meetings, and anyone who showed the slightest interest was co-opted to help. It was difficult to keep members adequately briefed to the point where they could easily assist in the campaign, so much of the activity had to be conducted by the sub-committee.
• A loose alliance with the WA Branch Committee of the Records Management Association of Australia (RMAA). More about this later.

5. Making an Impact with Submissions

The ASA WA Branch made a submission on the Discussion Paper. Mark Stevens, as National President, also made a submission on behalf of the ASA national body. Mark’s advice helped in focussing my early attempts to write the submission. Our co-operation meant that we presented complementary rather than identical or contradictory submissions.

We realised later that the numbers of submissions are the statistics that will be used, not the numbers of concerned professionals each one represents. The ASA’s two submissions counted as two submissions, regardless of the hundreds of archivists they represented. Every government agency submission carried the same weight as ours, even when it had been written without reference to any recordkeeping professionals on the staff. We made it easy for those receiving the submissions to report that only a very small number of adverse submissions had been received.

6. The Commission on Government

Our next opportunity was the Commission on Government, whose task it was to make recommendations on the recommendations of the Royal Commission. Specified Matter 9 concerned the terms that would be appropriate for legislation to establish a separate and independent archives authority for the State. The Commission consulted widely and held public information sessions and public hearings.

Once again, both the local branch and the national President of the Australian Society of Archivists made submissions. We regarded this Commission as so significant that Mark Stevens came to Perth in person to represent the national body at the public hearings.

The Report of the Commission on Government in 1995 reflected the views of the ASA to a gratifying extent. ASA submissions were extensively quoted. The Report made detailed recommendations about the creation of an Independent Public Records Authority for Western Australia. It recommended that the authority should be placed within the Ministry for Public Sector Management, quite a different suggestion to that of the Minister’s Discussion Paper. Its head, the Commissioner for Public Records, should be able to report directly to Parliament.⁽⁶⁾

7. The Committee to Make Recommendations on the Recommendations on the Recommendations

The government’s next move was to set up a Joint Standing Committee on the Commission on Government. This committee’s report in October 1996 supported the Commission on Government recommendations regarding an independent archives authority.⁽⁷⁾

In spite of all these recommendations, the Government Response to the Commission on Government Report which was tabled on 31 October 1996 did not support an independent public records authority. It stated that the Public Records Office would continue under the Library Board of Western Australia.⁽⁸⁾

8. New Moves

Our branch sub-committee now took tentative steps in a new direction. We approached an independent member in the WA Legislative Assembly. Phillip Pendal (the former Liberal member) had always taken an interest in matters historical and archival.

I contacted RMAA representatives, then asked Phillip Pendal for a joint meeting. To my surprise he immediately invited us to Parliament House, highly recommending the sausage rolls at morning tea. It will sound naïve, but I had no idea that a member of parliament would be so accessible.

Phil Pendal had invited Dr Elizabeth Constable, another independent MLA, to join the ASA-RMAA group. I had prepared a summary of events to that point. We discussed it briefly, then these two proceeded to give us what amounted to a workshop on political lobbying. I will not go into detail, but they gave us a very good indication of which MPs from all parties would be most likely to be interested in recordkeeping matters, and which positions were key positions to target. That meeting provided me with more reflections...

9. Renewed Vigour

Armed with our advice, we started a new round of writing to members of Parliament and arranging meetings.

Amongst others, I spoke to the Shadow Minister for the Arts, the Opposition Representative on Public Sector Administration, an upper house member of the Australian Democrats and my own local member. My local member was a particularly useful contact, because he had chaired the Joint Standing Committee. I noticed that he was more than a little annoyed at any suggestion that his committee’s findings might be completely ignored. I had to be content with an assurance that there would be no simple rubber stamp and that the matter would be carefully considered when it came up in Parliament.

Since that time, the Shadow Minister for the Arts, Sheila McHale, has regularly asked questions in Parliament, based on the information and concerns we have raised. This has helped to keep the issues alive.

We have continued to build on these contacts. We have written, faxed or telephoned to all these people reminding them of our concerns every time it was rumoured that the bill was about to be presented to Parliament.

I felt that we were making ourselves heard, because by late 1997, I actually received a two page letter from the Minister explaining in some detail why the ASA need have no fears about the legislation, a step up from the brief acknowledgements of concern received previously.

10. Other Contacts

We have looked to other means of influencing the proposed bill, by keeping ASA members informed.

State Records Office (SRO) staff have been very loyal to their employer and discreet throughout the entire process. We knew that some of them were involved in the drafting, but much as I would love to hint that our lobbying was assisted by contacts in the SRO, this was never the case. Nonetheless, we kept them informed of the ASA position, as we did with members employed in other concerned government agencies. It seems that sometimes drafts may be sent to certain other agencies for comment even when they are not publicly available.

11. RMAA Campaign

The ASA was by no means the only group consistently lobbying the government about the proposed legislation. Some of the tactics adopted by the Records Management Association of Australia (WA Branch) are certainly worthy of note.

From the start we looked to cooperate with the local RMAA branch committee. Early in the piece the preoccupation of some members with whether the new authority should be headed by an archivist or a records manager threatened to overshadow that cooperation, but this faded with the realisation that it was more important to work in harmony. There has been some joint action by the two groups, but most of the time we have simply kept each other informed of developments. A network of RMAA, ASA and the Records and Information Management Liaison Group (RIMLG) has been very helpful in making sure we all had the most up-to-date information.

The RMAA released a substantial, professionally printed Position Paper on the need for an independent state records office shortly before the Minister’s Discussion Paper was released.⁽⁹⁾ This was circulated widely and created discussion at a time when it was not clear how or when the government intended to act on the legislation.

Another tool the RMAA used effectively was to work with well-known local figures who held strong views on the subject. For example, Professor Leslie Marchant was invited to write on the issues of an independent public records office for an RMAA publication.⁽¹⁰⁾

More recently the RMAA employed a professional lobbyist to assist in discussions with various key players who might influence the composition of the Records Commission. This seems to have been rather successful.

The RMAA have also worked with Phillip Pendal on a series of amendments he has proposed to the legislation. I believe this might also prove to have been quite successful, and the ASA is supporting these amendments. They have been listed for consideration when the bill is returned to Parliament.

12. Media Releases

Another area where we have made some valiant but largely unsuccessful efforts is in preparing media releases. I suspect we have not put enough time and effort into cultivating contacts.

The same rules apply as for meeting politicians, about making two or three main points quickly and clearly. Media outlets are not generally interested in a detailed technical background, just some ‘bites’ that might grab attention. It is not always easy to make records legislation sound interesting and catchy. In our case, the legislation superficially fulfilled requirements for an independent archives authority, and it was hard to explain quickly why that model would not work. Choose as your contact the person who will be most successful at speaking in an interview situation. They need to be quick on their feet and thoroughly conversant with the situation and ASA policies.

13. Final Stages

By the time the draft legislation actually made an appearance in 1998, the Liberal Government no longer controlled the Upper House, so there was considerable scope for ensuring thorough discussion of the bill.

The Bill indicated that our lobbying had had some effect. Some of our concerns were allayed by provisions in the proposed legislation, although some new ones emerged. Our prime concern, the placement of the State Records Office, as it was now to be known, was omitted from the bill. The Second Reading Speech indicated that placement would be determined by the Government, and that this would be within LISWA. Difficult to argue this in Parliament, if it was not in the bill. You could say our lobbying had had an effect, although not in precisely the way we would have wished.

Our lobbying committee has found itself constantly hampered by our embarrassingly sparse knowledge of how the Parliamentary process works. We knew very little about how a bill makes its progress through things like first and second readings, and we were always guessing about the timing. You do not know when you should send out your last ditch press release. Too early and they will forget, but it is too late to send it out after the event. Parliamentary Web Pages have started to appear, making the process much plainer. The Internet has great potential in furthering participatory democracy.

The Bill has been on the list of ‘Chamber Documents’ for months now. Each time Parliament sits, we expect that it will be brought forward this time. Recent publicity about alleged destruction of records of the Marks Royal Commission makes us anxious that a new bill should be in place before too long.

As I said at the beginning, I have not discussed in depth the content of the Bill which does, in fact, have some very interesting features. That will be a matter for future discussion if, as Chris Hurley surmised in a posting to the ausarchivist listserv last year, it does prove to be ‘the first Australian attempt to introduce a third generation records law’⁽¹¹⁾. My intention has been rather to pass on some of our experiences and comment on the success or otherwise of our methods.

If I had to sum up my advice in one sentence, it would be this. Put in a great deal of time, keep your expectations high and be persistent, like water dripping on stone.

Footnotes

(1) The Report of the Royal Commission into the Commercial Affairs of Government and Other Matters, Perth, 1992, II 4.3.6.

(2) P.Foss, Minister for the Arts, ‘New Public Records Legislation for Western Australia’, Discussion paper, Perth, 25 July 1994.

(3) ibid, p. 7, ‘Various options include

• FOI Commissioner
• Retired judge
• Retired public servant
• Public Sector Standards Commissioner
• Distinguished academic historian’

(4) Australian Society of Archivists Incorporated (Western Australian Branch), ‘New Public Records Legislation for Western Australia’, A response to the Discussion paper released by the Minister for the Arts, Perth, September, 1994, p.2.

(5) In addition to ,providing assistance with submissions and representations, Council has prepared some Lobbying Guidelines since that time, to assist local branches in these situations.

(6) The Commission on Government’s Report No. 2, Perth, December 1995, Part 2, Chapter 7.

(7) Joint Standing Committee on the Commission on Government, Eleventh Report, October 1996, p.11-12.

(8) Government Response to Commission on Government Reports Nos 1-5, Perth, October 1996, p.16.

(9) RMAA (WA Branch) SubCommittee, ‘An independent state records office in Western Australia’, Position Paper, Perth, July 1994

(10) L. Marchant, ‘The alteration of the Westminster System of government and the threat to public records collections in Australia’, Informaa Quarterly, 1994.

(11) C. Hurley, Posting, Ausarchivist Listserv, 10th November 1998.