Australian Society of Archivists
1999 Conference

Overview of Archival Legislation in Australia

Anne-Marie Schwirtlich

• Jurisdictions with archival legislation
• Type of legislation
• Recent legislation
  • South Australia
  • Queensland
• Commonwealth developments
• Effectiveness and impact
• Conclusion
• Footnotes

The last decade has been a time of unprecedented legislative ferment in Australia. New archives/records legislation has been proclaimed in South Australia and New South Wales; is in draft form in Western Australia and Queensland; is under revision in the Commonwealth and is being seriously contemplated for the first time in the Australian Capital Territory.

Archivists, especially those of us with a responsibility for the records of governments, have worried about a range of questions including:

• what do we want archival legislation to achieve?
• are there decisions or functions that lie at the heart of the archival or recordkeeping business and must not be devolved?
• over what territory spanned by the continuum should legislation throw its net?

This paper ranges over five areas. It seeks to:

• remind you of the jurisdictions with archival legislation;
• discuss the type of legislation;
• describe the principal characteristics of the South Australian legislation, the draft Queensland legislation and the National Archives’ aspirations for new legislation;
• speculate on how effective our legislation is or by what means we might choose to measure effectiveness; and
• reflect very briefly on the impact legislation has on our work.

Jurisdictions with archival legislation

Every State and the Commonwealth has passed legislation that makes provision for its records or archives. To date neither the Northern Territory nor the Australian Capital Territory (ACT) has followed suit although in 1998 the ACT government appointed a project officer to head the ACT Archives Project. This resulted in the publication, in April this year, of an Issues and Options Paper ⁽¹⁾ about which comments were sought by mid-June.

Given the pace of our professional thinking, much of the legislation under which government archivists operate is of a certain vintage. The most venerable legislation is that of Western Australia⁽²⁾ dating to 1951-83 in which records/archives provisions are part of a library act. Independent archives or records legislation was proclaimed in Victoria in 1973⁽³⁾; Tasmania⁽⁴⁾ and the Commonwealth⁽⁵⁾ in 1983; Queensland in 1988⁽⁶⁾; South Australia in 1997⁽⁷⁾ and New South Wales in 1998⁽⁸⁾.

Type of legislation

In 1994, as Appendix 2 in the publication The Records Continuum⁽⁹⁾, Chris Hurley proposed an analytical framework for considering archival legislation. At that stage he categorised legislation into first and second generation legislation and he nominated the core characteristics that identified each generation.

In his review article in the November 1998 issue of Archives and Manuscripts⁽¹⁰⁾ Chris Hurley updated his typology by speculating on the characteristics of third generation legislation in the course of analysing the New South Wales State Records Act 1998.

In the 1994 analysis, Dust Bins to Disk-drives⁽¹¹⁾, Chris Hurley identifies first generation archival legislation as legislation that:

• establishes an archival authority;
• prohibits destruction without the archival authority’s approval;
• empowers the authority to receive records withheld from destruction; and
• permits access to transferred records unless restricted.

First generation archives intruded only in the most gentlemanlike way on the business of government – their only power being that over destruction. They were authorised custodians but there was no mandatory requirement to transfer records and they provided access to the records that came their way but had no authority to determine when and whether they might be made publicly available.

Second generation archives evolved as more assertive agencies with a greater capacity to intrude on the business of government. Chris Hurley describes second generation archives as those which:

• require the transfer of records after a prescribed period;
• regulate records management activities; and
• establish public rights of access to records after a specified lapse of time.

In assessing the characteristics of the New South Wales State Records Act 1998 he speculates on the characteristics of third generation archival legislation. He proposes that third generation legislation will be distinguished by characteristics such as:

• it will assume that recordkeeping is the business of government rather than just the business of an archival authority; and
• it will outline the outcomes of recordkeeping and perhaps the principles for recordkeeping but will not concern itself with how recordkeeping happens or who undertakes it.

In fact, he says, third generation legislation does not require the existence of an archival authority in the way that first and second generation legislation does and in the way with which most of us are probably comfortable.

Recent legislation

In analysing the New South Wales State Records Act 1998 against the characteristics of the three generations of legislation, Chris Hurley judges the NSW act to be halfway between second and third generation legislation. Tony Newton and Catherine Robinson’s paper focuses on the NSW legislation and the implications it has for recordkeepers. Jenny Edgecombe’s paper outlines progress towards the promised legislation for Western Australia.

So it might be most useful to confine this analysis to the South Australian State Records Act 1997, the Queensland Archives Bill (which Lee McGregor, the Queensland State Archivist, hopes will be passed this year) and the National Archives’ thinking about new legislation for the Commonwealth.

South Australia

The South Australian State Records Act 1997:

• establishes the Office of State Records;
• designates State Records as the principal repository for official records no longer required for current administrative purposes or which are fifteen years old;
• aims to ensure that official records of enduring evidential or information value are preserved for future reference;
• promotes the observance of best practices by agencies in their management of official records; and
• provides access to official records in the custody of State Records providing that exemptions or restrictions are observed.

The legislation requires agencies to ensure that official records in their custody are maintained in good order and condition. Disposal of official records may only occur with the approval of the State Record Council. The manager of State Records is empowered to issue standards relating to records management practices and is required to report to the minister responsible for State Records any inadequacies in the records management practices of agencies. Such adverse reports would make their way to a wider audience if incorporated in the annual report of State Records as this is tabled in Parliament.

The access status of official records is determined by the agency responsible for the record – the legislation does not specify at what point an access determination should be made nor when there might be a general right to expect that records will move into the public domain.

On the basis of these characteristics it would be fair to classify the South Australian legislation as second generation legislation.

Queensland

If enacted the most recent version of the Queensland Archives Bill⁽¹²⁾ would:

• establish the office of Queensland State Archivist and provide for the appointment, remuneration, termination or resignation of this officer;
• provide that the archivist controls the State Archives subject to the Minister and Chief Executive;
• require the Minister to establish a State Archives Board;
• empower the Archivist to set policy and standards and have guidelines on the making, keeping, preservation, management and disposal of public records. The Bill would require the executive officer of a public authority to ensure that it makes and keeps fair and accurate public records and complies with recordkeeping policy;
• require the Archivist to provide the Minister with an annual report. This report may
  • assess the extent to which public authorities are complying with the Act, and
  • advise on measures to prevent or reduce non-compliance;
• allow the Archivist to authorise the disposal of public records – in exercising this function the Archivist and the staff of the archives are not subject to the control or direction of a minister or a department. However, a public authority may make written application to the State Archives Board for a review of a decision and any decision by the Board to confirm, amend, revoke or substitute a decision will be deemed a decision of the Archivist;
• allow the transfer of records less than twenty-five years old to the State Archives if they need not be readily available in an authority’s own custody and require all public authorities to provide the State Archives with notification of all records more than twenty-five years old in their custody; and
• require that access be allowed to public records if the restricted access period has ended. Restricted access periods are 30, 65, and 100 years from the last action on a record and the potentially exempt matter that determines to which category a public record belongs is set out in the Freedom of Information Act 1992.

Were the Queensland Archives Bill to be passed in its current form it too would be categorised as a piece of second generation legislation.

Commonwealth developments

In August 1996, the Australian Law Reform Commission was referred the brief to review the Commonwealth Archives Act 1983. In January 1997, the Commission published, and circulated widely, Issues Paper 19 ⁽¹³⁾. This was followed by public meetings in all capital cities and consultation with a variety of interest groups. This consultation combined with assessment of over 100 submissions resulted in the publication of Draft Recommendations Paper 4 and then, in May 1998, Report No. 85 titled Australia’s Federal Record: A review of Archives Act 1983 ⁽¹⁴⁾.

The government has not finalised its response to the report. Although preparation of the government response commenced last year, the embryonic response has languished in the last 10 months. It would be fair to say that there is no bureaucratic pressure, no sense of public urgency and little political drive to see the Australian Law Reform Commission’s recommendations implemented. The Director-General has decided to assign a senior officer to the job of steering a process for implementation because the Archives has the most at stake and the most will to achieve an outcome.

The Australian Law Reform Commission made a daunting 223 recommendations, concluding that new legislation should be drafted. The National Archives believes there is a persuasive case for new legislation rather than grafting new provisions onto some of the existing trunks of the 1983 Act. While the National Archives does not support all of the Commission’s recommendations there are many areas in which the views of the reviewer and the reviewed align. Given this, what did the National Archives want to see the Australian Law Reform Commission propose and what will the National Archives want in new legislation?

In discussions with the Australian Law Reform Commission and in seeking new legislation the National Archives stressed the importance of:

• ensuring that the Commonwealth creates, keeps and provides access to records in an appropriate and accountable manner;
• ensuring that the agencies and records to which the new legislation applies remains as comprehensive as possible;
• establishing as a statutory authority an archival agency required to formulate standards and tools and to authorise it to apply them in certain circumstances; and
• ascribing to the archival authority, as represented by its chief officer holder, the unfettered power to determine the disposal status, the custody arrangements and the access status of Commonwealth records.

Over the last three years the National Archives has debated many issues including:

• should the National Archives bifurcate resulting in a standard setter and auditor on the one hand and a service provider and delivery organisation on the other?
• should the National Archives bifurcate resulting in an organisation concerned with recordkeeping and one concerned with heritage, cultural and accessibility concerns?
• should the access provisions of the new legislation span the records continuum and incorporate the provisions of the Freedom of Information Act?
• how might compliance with the provisions of new legislation be effected given the current vogue for light handed and non prescriptive legislation?

Despite the energetic and extensive work of the Australian Law Reform Commission, new legislation in the Commonwealth remains some distance from reality. This is not cause for despair as the Archives Act 1983 remains eminently serviceable in many respects and the time lag provides the National Archives with the opportunity to observe and reflect on the provisions and implementation of legislation in other jurisdictions.

Effectiveness and impact

The ferment of legislative activity mentioned at the outset has consumed a great deal of time and energy across Australia. We obviously consider this an eminently sensible investment and advocate archival legislation as a necessary foundation in jurisdictions currently innocent of it. Only last month, at a seminar organised by the Canberra Branch of the Society to discuss the ACT Issues and Options Paper, Adrian Cunningham asked whether the Australian Society of Archivists thought the ACT should enact archival legislation and said the answer was an emphatic yes.

Why is legislation so important? Can effective recordkeeping flourish without it? Can poor recordkeeping exist in jurisdictions with good legislation? How effective is archival legislation in achieving record creation, maintenance and accessibility outcomes?

The themes for this conference provide us with some insight into why we think legislation is important. Ours is a small profession and the outcomes we seek are vulnerable to many pressures. Legislation is one way of ensuring the importance of accountability, distributing responsibilities and of articulating public rights. Legislation is the basis of our societal framework and archival legislation presents our functions and our organisations as credible and authoritative and vests them with some power.

We would I think all agree that successful recordkeeping regimes can exist without legislation and that legislation alone will not effect good recordkeeping. So, how effective is our legislation and how effectively do we drive it? What are the hallmarks of success?

Is the appropriate creation, management and retention of full and accurate records across the variegated landscape that constitutes government activity (that is, parliaments, courts, agencies, statutory authorities, corporations) a hallmark of success?

Is regulated disposal a hallmark of success?

Is the articulation for rights of public access and the facilitation and enforcement of such rights a hallmark of success?

Should we take stock, assess and analyse our performance? If we don’t how will we tackle some of the enduring problems. For example:

• issues of compliance;
• the erosion of the ambit of legislation by exempting its application to specific records or agencies (a recent case involves the attempt to exempt by regulation the records of the Operations Intelligence Division of the South Australian Police from the South Australian State Records Act 1997); and
• by regulating to exempt certain records from specific provisions (for example, exempting adoption records from the access provisions of proposed legislation in Queensland).

Will we consider and debate the need for legislation to cover organisations and individuals that have no government connection? The only device currently in operation that recognises and rewards the shift of private records and cultural property into the public domain is the Cultural Gifts Program better known as the Tax Incentives for the Arts Scheme. Is this sufficient? If brought to account for the state of recordkeeping across all dimensions could we acquit ourselves well?

Conclusion

The development, drafting and delivery of legislation and then its implementation are monumental tasks for archival organisations and in themselves worthy of self and professional congratulation. However exhausting a proposition it may seem I argue that it is not enough. We should also begin thinking about a systematic way of evaluating our legislation and its application (within and across jurisdictions) to assist us in improving our performance and future legislation.

Footnotes

(1) Australian Capital Territory Department of Urban Services, ACT Archives Project: Issues and Options Paper, (Canberra, ACT Government, 1999)

(2) Library Board of Western Australia Act, 1951-1983

(3) Public Records Act 1973

(4) Archives Act 1983

(5) Archives Act 1983

(6) Libraries and Archives Act 1988

(7) State Records Act 1997

(8) State Records Act 1998

(9) Sue McKemmish and Michael Piggott (eds), The Records Continuum: Ian Maclean and Australian Archives First Fifty Years (Clayton, Melbourne, Ancora Press in association with Australian Archives, 1994), pp 206-232

(10) Chris Hurley, ‘From Dust Bins to Disk-drives and Now to Dispersal: the State Records Act 1998 (New South Wales)’, Archives and Manuscripts, Vol. 26, No. 2, pp 390-409

(11) ‘From Dust Bins to Disk-drives’, in The Records Continuum, op.cit., pp 210-211

(12) Archives Bill 1999

(13) Australian Law Reform Commission, Issues Paper 19: Review of the Archives Act 1983 (Sydney, Commonwealth of Australia, 1996)

(14) Australian Law Reform Commission, Report No. 85: Australia’s Federal Record – A review of Archives Act 1983 (Sydney, Commonwealth of Australia, 1998)