Media briefing paper
2 July 1998
Australia's Federal Record: A review of the Archives Act 1983 (ALRC 85)
The Australian Law Reform Commission (ALRC) began its review of the Archives Act in August 1996, at the request of federal Attorney-General Daryl Williams.
It is the first major review of the legislation, which was drafted at a time when Commonwealth government records were predominantly in paper format.
Traditional recordkeeping methods are now facing enormous challenges from the rapid development of electronic communication and recordkeeping systems. These technological advances raise fundamental issues about what records should be created and how they can be preserved and made easily accessible.
The ALRC published an Issues Paper in January 1997 and a Draft Recommendations Paper in January this year. The Commission has consulted widely with interested stakeholders and the final report takes into account their views, as well as the opinions expressed in almost 150 written submissions lodged with the ALRC over the course of the inquiry.
Australian Archives -- the Commonwealth's archival authority -- was renamed the National Archives of Australia in February 1998. The name change was, however, of an administrative rather than legislative character.
The new Archives and Records Act
The Commission has recommended that the present Archives Act be replaced by a new Archives and Records Act. The principal objectives of the new legislation will be to:
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ensure that the Commonwealth creates records sufficient to manage current functions efficiently and accountably; record and safeguard the rights, entitlements and obligations of individual citizens; and document the history of the nation by maintaining a record of significant events, policies, movements and people;
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establish an accountable framework for the evaluation of Commonwealth records;
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ensure that records are preserved for as long as they are of value to the Commonwealth or the people;
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ensure that records more than 30 years old are made available to the public unless there are compelling and appealable grounds for withholding them;
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encourage the public release of records less than 30 years old wherever possible;
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encourage the greatest possible use of Commonwealth records as a vital element in the history of the nation; and
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establish an authority to ensure that the objectives of the legislation are achieved.
The new National Archives of Australia (NAA)
The present National Archives of Australia, which is part of the Department of Communications and the Arts, should be replaced by a new independent statutory authority. The new authority would retain the name National Archives of Australia, but its independence and standing would be significantly enhanced. It would have two roles:
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to protect all Commonwealth records of archival value; and
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a supervisory role for all Commonwealth recordkeeping, with emphasis on the issue of standards and guidelines to ensure the adequate creation, maintenance and disposal of all records.
The new authority would be managed by a council, the members of which would be chosen to provide a wide range of relevant opinion and expertise.
The NAA would continue to be predominantly budget funded, but the Commission has made recommendations for new management and charging strategies, which should reduce the total cost to the Commonwealth of providing archival services.
Standards for creating and managing Commonwealth records
The Commission found that the quality of recordkeeping by Commonwealth agencies varied widely and was often inadequate. The rapid development of electronic information management and communication systems will bring great benefits if they make adequate provision for recordkeeping. However, if recordkeeping is neglected and fragmented between incompatible electronic and paper based systems the situation will worsen.
The Commission has therefore recommended that there should be mandatory uniform standards for all stages of the continuum of Commonwealth recordkeeping from creation to disposal or archiving. This would involve the following responsibilities:
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the NAA would be required to issue recordkeeping standards;
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the chief executive officer of each Commonwealth agency would be required to ensure that the standards were implemented satisfactorily; and
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the Auditor-General would monitor the operation of the standards.
Disposing of Commonwealth records
Most Commonwealth records will sooner or later be disposed of because they are no longer required for administrative purposes and they do not merit retention as archival records. An effective records disposal regime is, therefore, essential to ensure that valuable records are identified and that valueless records are disposed of as quickly as possible to avoid unnecessary storage costs. The Commission has recommended that the NAA should continue to have sole authority for the disposal of Commonwealth records, but that the legislation should include additional measures to make the disposal process more efficient and accountable. These include:
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more effective provision for the NAA to monitor the disposal of records by Commonwealth agencies;
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a requirement that the assessment of the administrative and archival value of all Commonwealth records be completed by the time the records are 20 years old;
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provision for the subject of a Commonwealth record to be given a reasonable opportunity to assume ownership of it if the Commonwealth no longer requires it;
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power for the Commonwealth to compulsorily recover records which have been improperly removed from its custody; and
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a requirement that Commonwealth records in the possession of ministers must be transferred to the custody of the NAA when the minister leaves office.
Caring for Commonwealth records
The National Archives of Australia has already moved a long way from its traditional role of providing warehousing facilities for all Commonwealth records, regardless of whether or not they are of archival value The Commission has recommended that the Archives completes this process and devotes its records storage resources essentially to the care of records which are of archival value. The storage of records which are not of archival value should be the responsibility of the agencies which created them and should be undertaken on a fully commercial basis.
The NAA should, however, have responsibility for issuing standards for the storage and preservation of all Commonwealth records, including those housed by private storage companies on behalf of the Commonwealth.
Storage and preservation standards should ensure that the accessibility and functionality of electronic records are preserved.
Any decision to withhold records of archival value from transfer to the national Archives must be approved by the National Archivist or, in certain circumstances, by a minister.
The concentration of the NAA's resources on records of archival value will enable it to take its rightful place alongside the other great national collecting institutions, in particular the National Library and the Australian War Memorial.
A stronger public access regime
The Commission has endorsed many basic features of the present public access regime, in particular:
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a statutory right of public access to all Commonwealth records which are 30 years old, subject only to appealable exemptions;
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a requirement for the Commonwealth to respond to all access applications within 90 days;
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clearly defined categories of exemption;
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a requirement to provide written reasons in support of any exemption;
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a right to internal and external review of any decision to exempt records from public access; and that
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charges should not be levied on access applications.
The Commission has recommended, however, that these provisions be significantly strengthened in the following ways:
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the 15 existing categories under which records may be exempted from public access should be reduced to nine, and where possible they should be simplified;
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an additional exemption category should be provided to protect information which is confidential or subject to disclosure restrictions under Aboriginal or Torres Strait Islander traditions;
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there should be a legislative direction that records more than 30 years old are to be made available to the public unless there are compelling reasons for withholding them;
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any decision to exempt records must be justified by contemporary evidence and information;
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the public access status of records of archival value should be determined before they reach the age of 30 years, rather than at some time after 30 years when they become subject to a specific access application;
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the present backlog of records in the custody of the NAA which have not had their public access status determined should be eliminated within 10 years of the new legislation coming into effect; and
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access examination procedures should be further streamlined so that wherever possible decisions can be made on large groups of records without the need for detailed examination .
Access to records less than 30 years old
The Commission has been concerned that public access to Commonwealth records less than 30 years old still tends to be regarded as the exception rather than the rule. It has made the following recommendations to address this problem:
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there should be a statutory obligation on all Commonwealth agencies to make records available at the earliest practicable time;
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the Freedom of Information Act, which at present applies only to records created since 1 December 1977, should be extended to apply to all records less than 30 years old;
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the National Archives of Australia should issue guidelines to encourage and facilitate the early release of records; and
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procedures for access by researchers to records not generally available should be streamlined and made subject to research contracts
Archival services for the public
While endorsing the present range of services offered to the public by the National Archives of Australia, the Commission stressed the importance of developing them further to make Commonwealth archival records available and relevant to many more Australians. The measures recommended by the Commission include that the NAA should:
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have a statutory obligation to maintain a service charter;
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be required to create adequate finding aids for records and to promote their availability;
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maintain an information office in each capital city with knowledgeable staff to assist with the identification of appropriate records; and
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expand the availability of records, particularly through new technologies and public promotion of the availability of records.
This page was posted 13 March 2002