From Dust Bins to Disk-drives and Now to Dispersal: the State
Records Act (New South Wales) 1998
By Chris Hurley
Background
A survey of records legislation (entitled "From Dust Bins to Disk-drives")
which I completed barely four years ago as an Appendix to The Records
Continuum2 is rapidly becoming out of date. New legislation
has passed in South Australia and New South Wales and a major Law Reform
Commission Review of the 1983 Commonwealth Act has been completed. A copy
of the Western Australian State Records Bill 1998 became available just
as this article was going to the printer and a comment on it is included
below3.
Some continuing process for documenting legislative changes as they occur,
and for comparing and contrasting legislative provisions at Commonwealth
and State level, would be desirable. This article does not attempt to
do that. At a more fundamental level, it may be asked whether the direction
legislative changes are taking involves any significant variation from
the typology given in my earlier analysis. In other words, does the 1994
analysis just need to be updated or should it, instead, be revised?
I accepted this invitation to provide a brief analysis of the new State
Records Act in New South Wales in the belief that, in some ways, it
breaks the mould. Since 1993, I have been a consultant to the New South
Wales Archives Authority, now State Records Authority (SRA), on its proposed
new Bill. It is not for this reason alone that I regard its passage into
law as a significant step. There are good reasons, which I shall endeavour
to outline here, for regarding it as important, ground-breaking legislation
which poses a real challenge for other archives authorities - whether
to emulate or repudiate it.
It will not be possible, for reasons of space, to make a detailed analysis
of the whole of the new Act. I will confine myself, therefore, to some
aspects only which seem to me to justify the above contention.
The Act should not, in my view, be regarded as just one more addition
to the portfolio of records legislation in this country. In my 1994 analysis
I placed all Australian legislation into a generational framework which
implied progress along a linear axis :
The 'first generation' Acts
- establish an archives authority,
- prohibit destruction without the authority's approval,
- empower the authority to receive records withheld from destruction,
and
- permit access to transferred records unless restricted
The archives authority was seen as a passive recipient of records
deemed to be of permanent 'archival' value once government had finished
with them
The second generation Acts are based on a more activist
view of what a public records program should be
- mandates transfer after a nominated period
- regulates records management activities, and
- establishes public rights of access after a specified period.
In each instance it will be seen that these provisions are proactive
4
This generational model was useful in depicting a direction along which
archivists wanted change to occur. Having an archives authority to prevent
thoughtless destruction, to take older records and look after them and
make them available were foundation stones in a system which was progressively
maturing into one which required agencies to transfer records, imposed
access obligations after 30 years on all records (not just those which
had been transferred), and regulated records management (not just the
management of archives).
Into this model, the Archives Act 1960 (New South Wales) clearly
fitted as a first generation Act. My brief, when I first accepted the
commission from John Cross5 to be his consultant on the
proposed Bill, was to help the Archives Authority develop and implement
second generation legislation. What makes the resulting legislation significant
is that we failed in this. The new Act can justifiably be regarded - if
not as third generation legislation - at least as the first Australian
example of a post-second-generation Act. As we jokingly said from time
to time - it is a 2½ generation Act.
It was clear to us from the outset that third generation legislation
might not extend the straight line drawn between the two points already
plotted in the 1994 analysis :
the external environment is forever changing. Within the professional
literature post-custodial models for archival programs are being developed.
What the implications of these models may be for archival legislation
is not yet clear. It seems highly unlikely, however, that third generation
Acts will seek to mandate the "storage" of records in an archives repository
or assume that "access" to those records will be provided by the archives.
It is far more likely that the focus of third generation legislation
will be on the development and implementation of standards for recordkeeping
which comprehend or impinge on procedures for the disposal, documentation,
and accessibility of official records.6
In this essay, I will use the 1994 model to analyse the new N.S.W. Act,
drawing attention to those features, in particular, which point the way
to new directions. This should be regarded as preliminary work to a full
scale revision of the 1994 model, bringing the whole survey up to date,
perhaps when the review of the Commonwealth Act is completed and amendments
are enacted.
Reverse All Engines?
The line of direction from first to second generation Acts seemed to
be along a path giving the archives authority more say (more power, more
control) over recordkeeping throughout Government. No single misconception
gave us more trouble. We had similar problems when we began trying to
enact the Commonwealth Act in the 1970's.
The problem is that in bureaucratic terms records laws are seen as charters;
instruments for empowering one public agency (the archives authority)
at the expense of others (agencies). In the inter-play of bureaucratic
politics, such legislation is routinely (even automatically) opposed and
watered down by other agencies who believe their "turf" is being invaded.
Since records legislation (by its very nature) invades everybody's turf,
the opposition is formidable.
Although it seems implausibly naοve to say so, what one has to try to
convince people of is this : that records legislation is first and foremost
a mechanism for imposing corporate (i.e. Government) control over agency
recordkeeping and only secondly about assigning their respective roles
in that process to the archives authority and to Government agencies.
Further, it needs to be understood that the same corporate recordkeeping
objectives can be achieved in a variety of ways involving different mixes
of responsibilities.
The error goes back to first generation Acts which were largely about
separating the respective spheres of activity of agencies and the archives
authority and empowering them each to operate in their respective spheres
without interfering too much with each other. Second generation Acts emphatically
"intruded" into the activities of agencies (as if these were entirely
the concern of feudal baronies making up the bureaucracy and of no interest
to the Government whose legislation it was). The point which I have never
successfully got across in nearly twenty-five years is that the purpose
of such legislation is to regulate the totality of government recordkeeping
activities - of both agencies and the archives authority - not just to
assign responsibilities to each. Agencies seek to "escape" the clutches
of the archives authority by having themselves exempted from the statutes,
whereas the principle should be that (even if an agency is not "subject"
to rule from the archives authority) every agency should be subject to
a records law which specifies what its obligations to corporate accountability
should be, even if they are different from those of other agencies.
In a second generation Act, much of the success in implementing the purposes
of the legislation still depends upon the initiative taken by the archives
authority to make things happen and its success in achieving an operating
environment where its practices and procedures are universally adopted
by agencies. Logically, however, the distinction between first and second
generation Acts is clear. It is not possible to have a first generation
Act without an archives authority; such Acts operate on the assumption
that total responsibility for records lies with agencies until the archives
authority takes over at which point (when records are no longer needed
for current administrative purposes) total responsibility passes to the
archives authority. It should be possible (though I would not like to
try) to design a second generation Act without the need to have an archives
authority at all.
Although second generation Acts appear to be empowering archives authorities
and expanding their role and functions at the "expense" of agency autonomy,
when correctly viewed they should be seen as being, possibly, stepping
stones towards the ultimate extinction of the archives authority. For
what is happening is not really an expansion of the archives authority's
"power" at the expense of agency independence. It is rather an extension
of corporate governance - a movement outwards of what some call the archival
or recordkeeping boundary. When that boundary is co-extensive with corporate
activity, when recordkeeping rules govern all corporate activity to which
they are appropriate, it is arguable that quite different instruments
will be needed to provide and enforce that corporate governance.
Indeed, I think it is arguable that archivists have already proven themselves
to be unfit to be entrusted with that role. But that is another debate.
The point to make here is that in second generation Acts, the outwards
movement of the recordkeeping boundary appeared to be giving the archives
authority more things to do over larger quantities of records. Records
came to the authority by predetermined rules, not when agencies thought
fit. Access rights applied to records which had not yet come into the
authority's control if they were old enough. The authority had an explicit
mandate to advise (or even dictate) on the manner in which records were
made and handled.
It could be assumed that a third generation Act would go on adding to
the roles, responsibilities, and activities (and by implication the budgets
and staffs) of archives authorities. From this point of view, legislation
such as the New South Wales State Records Act 1998 which does not
require records to move "from" an agency "to" the authority (and actually
empowers the authority to refuse to take them) may seem a retrograde step.
The trick is to look at it the right way up. The new Act does indeed
(to use the pejorative language of hostile agencies) "intrude" more than
the old one into their activities. The archives authority (perceived as
the instrument still of that intrusion) runs the risk of being regarded
with suspicion and resentment. What it does not do is to intrude by mandating
that tasks previously undertaken by agencies are taken over and thereafter
carried out by the archives authority. It abolishes, in other words, or
at least de-emphasises, the life cycle approach under which what are essentially
the same recordkeeping tasks are split into two separate sets of responsibilities
mandated solely on the age and appraised value of the records.
The new Act goes some way (and its failure to go all the way is what
makes it a 2½ generation Act rather that a third generation Act) to separating
out corporate governance policies and procedures from implementation.
A true third generation Act would set out (and establish machinery for
promulgating) the corporate governance framework for Government recordkeeping
allowing for alternative implementation strategies. It might say little
(if anything) about the implementation strategies which were to be used.
Since these implementation strategies cover almost everything that was
in a first generation Act and much that was in a second generation Act,
it is apparent that they will be very different from what we are used
to.
To put matters at a practical level. Third generation Acts will say what
the principles are which govern good recordkeeping, they will lay down
the outcomes which must be achieved and the expectations (including citizens'
entitlements) which must be satisfied. They will be less concerned with
how these are achieved. Thus the State Records Act 1998 empowers
the SRA to set "standards". These standards are important instruments
in achieving the Act's objectives. The Act specifies a mechanism for identifying
who (the SRA itself or an agency) is responsible for carrying out and
satisfying the relevant standard(s) in particular circumstances.
The key to understanding the underlying logic of the legislation is that
such standards are applicable to anyone who is carrying out a responsibility
under the Act : to the SRA as much as an agency. Under second generation
legislation, it was possible to regard a standard as an instrument whereby
the archives authority imposed an obligation on agencies. Under third
generation legislation, standards will govern recordkeeping wherever and
by whomsoever it is carried out7.
It can be argued that a conflict exists between the role of the archives
authority as standard setter and as implementer, and this not only on
the insulting (and largely irrelevant) grounds of "professional capture"8.
This conflict is not simply about whether archives authority should adopt
a purchaser/provider model. It goes much further than that. It delineates
several quite separate functions for the professional recordkeeper : that
of assumed professional knowledge about what things should be accomplished,
that of designing systems aimed at achieving them, and that of being responsible
for carrying them out.
None of these roles necessarily belong together and they are all different
from deciding what the outcomes themselves should be. The formulation
of recordkeeping policy is a task of corporate governance - for the board
or government to decide. The policy, or elements of it, can be set out
in legislation (arguably, should be) but it can't be left to recordkeeping
professionals to be both deciders of what the recordkeeping policy should
be and experts on how it can be done - though this has, historically,
been the role assigned to us.
The issue for debate (I do not assume my analysis will be widely accepted)
is, to use a specific example, whether the archivist should be responsible
for deciding what records are to be destroyed or kept or simply what records
need to be destroyed and kept in order to achieve a designated outcome.
The same distinction can be made in any one of a dozen other issues which
might come the archivist's way. Giving up the decision-making responsibility
is not an abdication by the archivist or recordkeeper, it is an affirmation
of it. A disposal policy must be grounded on something more substantial
and more convincing than the archivist's best judgement. There must be
an external validation of the decision, call it "literary warrant", a
policy, whatever. It follows that archives legislation which places in
the archivist's hands an absolute discretion about what to keep and what
to destroy is inimical to (rather than supportive of) good recordkeeping.
Now, I have argued often enough against fettering the archivist's discretion
in disposal and other areas (and against removing that discretion) for
this to seem paradoxical. The object remains the same : to establish a
body of rules and procedures to ensure a consistent, reliable, predictable,
justifiable, and testable disposal outcome. The point is that until legislation
establishes some better way, the independent judgement of an archives
authority is to be preferred to the unregulated power of business units
within a corporation (be it a business or a government) to make their
own decisions without reference to corporate authority acting in conformity
to social and legal requirements as well as business needs.
It is along this path of development that the faltering steps of the
State Records Act beyond its second generation roots must be judged.
Custody
First generation statutes established a definite boundary between the
archives authority and the realm of records creation. Second generation
Acts began to extend the statutory regime outwards, so that statutory
requirements operated in the realm of the creator as well as that of the
archives authority. It is now possible to speculate that third generation
Acts will do away with the boundary altogether.
The first generation boundary distinguished between records belonging
to or under the care, custody, and control of the bureaucracy and those
which had passed over to the other side of the boundary to become the
concern of the archives authority. In many of these Acts, passage across
the control or custody boundary actually transforms records into "archives",
a defined term for that sub-category of records transferred to and controlled
by the archives authority9.
Almost the only intrusion into the record-creator's realm made by first
generation Acts was a prohibition on destruction without the approval
of the archives authority. Since this was, to some extent, the process
by which records were to be propelled across the boundary and this passive
approach (archives waiting until asked) was the least intrusive of all
possible mechanisms, it scarcely constitutes an exception.
Second generation Acts are characterised by provisions which "intrude"
the statutory regime into the otherwise unfettered discretions of record-creators
(we would now say provisions which impose corporate control on recordkeeping
practice). The first instances of this were the provisions in some State
Acts for the archives authority to inspect agency premises and to give
(with varying degrees of dominion) advice and assistance to agencies in
carrying out their recordkeeping tasks. Prior to this new Act, the most
advanced examples of this have been the standard-setting provisions (ss.12
and 13) of the Public Records Act (Victoria) 1973 and some aspects
of the 1997 South Australian legislation.
Curiously, the 1983 Commonwealth Act, in other respects the model of
what a second generation Act should be, was almost entirely innocent of
any suggestion that the Archives should have such a role10.
This was owing to the opposition of the then Commonwealth Public Service
Board which saw involvement by the archives authority in records management
as intruding on its domain. The obvious solution, to include a standard-setting
power and assign it to the Board was not seriously considered. Where the
1983 Commonwealth Act did foreshadow a truly third generation development
was in the drafting of the access provisions to extend a statutory right
of access over all records more than 30 years old regardless of whether
or not they had been transferred.
These provisions envisaged a universal access regime which had nothing
to do with archival boundaries, enduring values, or custody arrangements.
The Act was even drafted to allow the possibility that the access clearance
process which it requires need not be done by Australian Archives' staff,
but could be done by anyone, anywhere, under delegation. Regrettably,
Australian Archives chose not to develop these potentials and continued
effectively to run a centralised access clearance regime (possibly because
of perceived difficulties when the Archives was called upon to defend
access closures before an external appeals tribunal).
Third generation Acts may take the next logical step and separate outcomes
from implementation strategies. Under these statutes, recordkeeping rules
will be established which apply regardless of age, appraisal status or
location of records. Those rules will be satisfied by whosoever is identified
as being responsible for the matter which is the subject of the rule.
Identifying and assigning these responsibilities will become a major task.
It will not, therefore, be a matter of making one person or body responsible
for satisfying every recordkeeping rule by moving records into a domain
within which one person or body has exclusive and total control for everything
- such as an archives authority. Rather, it will be an important part
of the legislative task to establish a framework for identifying which
bodies are responsible for which records (wherever they may be found)
and, where overlap or ambiguity is possible, who has primary responsibility.
The new Act certainly persists in the establishment of an archival boundary
by creating a distinction between "State record" and "State archive" -
the latter being those State records of which the Archives Authority of
New South Wales has assumed control. State archives can exist in "distributed
custody" - i.e. the Authority can assume "control" over records which
are to be found in the creating agency (or anywhere else, for that matter).
Because the place debate has become so confused, it may be necessary
at this point to distinguish between distributed custody and post-custodial
arrangements. Post-custodialism (as I use the term) means the application,
within a domain, of a set of universal recordkeeping rules regardless
of where records are kept within the system and irrespective of who (provided
they are authorised) implements them. In order to have distributed custody
within such a domain, you must first identify some portion of the whole
(and establish special rules applying only to that portion) so that custody
of it can be "distributed" along with responsibility for implementing
the special rules. Distributed custody, in other words, only makes sense
from the point of view of the archives authority. Post-custodialism steps
outside that point of view.
On this interpretation, the new Act is still some way from a full blooded
third generation model. It establishes a custodial regime (of "control")
over a sub-set of the whole called State archives. The distributed State
archives are the responsibility of the SRA which exercises its obligations,
in part, through a system of "agreements" with persons, including government
agencies, who hold them (s.36). This is the distributed custody.
These are the kinds of compromise that real world legislation has to
make along the painful path of transition towards the future. But the
new Act has some wholly third generation, post-custodial features too.
These jostle (perhaps uncomfortably) with its other provisions. For the
"agreements" provision does not cover all the things which will be necessary
for the SRA to carry out its responsibilities. To do that, it will have
to rely on its standard setting powers under s.13. Thus, in order to ensure
that archives which have not been transferred are well managed, the SRA
will have to rely not only on specific agreements with the surrogate custodians
but also on obligations arising out of standards which have general application
- not just to custodians of archives.
Certain implications follow. The standards may be expressed to apply
to all records (not just archives) so that the SRA's obligations in respect
of archives will be satisfied by compliance with standards which apply
to records generally. Should the need arise, there is, however, nothing
to prevent the establishment of a standard which applies only to archives.
By extension, it will be seen that at least some standards will apply
to both government agencies and to the SRA itself. A standard on storage
conditions, for example, whether for all records or just for archives
would be what would set the bench-mark for a preservation environment
regardless of whether that environment was in premises managed by the
SRA or within the distributed custody realm.
The distinction between the two methods, however imperfectly realised
in this incarnation, is perfectly clear. The agreements provision (s.
36) allows the SRA to implement rules applying to records segregated from
the whole by ensuring that the custodian of those records abides by a
contract specific to them. The standards provision (s. 13) allows the
SRA to set out what rules are to apply regardless of who has management
and control of the records.
Ambit
The Archives Act 1960 (NSW) did not apply to the entire public
sector in that State. The Act's ambit was limited by intentional omission,
oversight, subsequent legal interpretation, and the effects of the effluxion
of time. With the new Act, our purpose was to establish a legislative
regime which covered the entire public sector.
The most difficult obstacle was the perception that being covered by
the new Act would necessarily carry with it an obligation to submit to
all of its substantive provisions. Some agencies feel that their case
is special and that the ordinary obligations under records laws do not
(or should not) apply to them. This is reasonable. They then go on to
argue that they and their records should be excluded in their totality
from the operation of records law. This does not follow.
One of the intentions of the new Act is that there should never be doubt
about the status of an agency under the Act even if none of its substantive
provisions apply. The definition of "public office" (s.3) is meant to
be comprehensive, that is to include all public sector agencies without
exception. Section 81(2) of the Act then provides for the operation of
provisions relating to any agency or its records to be suspended by regulation
and, where appropriate, brought back in the same way.
This has two advantages :
- It reduces the area of doubt as to coverage. Even if new administrative
arrangements are set up, they are more likely than not to be caught.
If it is not appropriate for them to be covered, the mechanism exists
for suspending the Act's operation over them.
- It mitigates against unintended consequences when agencies continue
to be excluded once the good reasons for excluding them no longer apply.
When those reasons no longer apply or the agency goes out of business,
it is easier to have them revert back into a system they have always
been part of (though its operation has been suspended) than it is to
bring them into a system to which they have never belonged.
In other cases, the exemption from substantive provisions is enacted
in the body of the statute itself (either to nominated bodies or to specified
classes of records) and its operation, in these cases, may be extended
only by agreement with the bodies concerned.
The sole exception to the flexibility which this approach gives is in
the area of regulation of disposal. No agency and no record of any kind
or on any ground can be exempted from the obligation to be accountable
for disposal of public records (Part 3)11.
Enforcement
Third generation Acts will make us distinguish between enforcement and
the larger issue of compliance. First and second generation Acts tend
to establish specific obligations and prohibit specific actions with the
result that transgression constitutes a breach. This should, in my view,
continue to be a feature of third generation Acts, but they will also
need to deal with outcomes and utilise processes which do not mandate
or prohibit specific actions (so long as the outcome is achieved) and
where the black-and-white issue of transgression is replaced by degrees
of compliance. This will be more commonly the approach in applying standards
and codes of practice - though these too can be enforceable.
In Dust Bins12 the question of compliance was
discussed almost entirely in terms of enforcement and the failure to seek
prosecutions under provisions which make it a criminal offence to unlawfully
destroy public records. It is not surprising that our first generation
Acts should have settled on this method. As noted above, the prohibition
on disposal was practically the only matter upon which an obligation from
the archives side of the boundary stretched out to impose on records creators
over on the other side.
One reason why there have been no prosecutions is that in Australia governments
discourage (where they do not actually forbid) prosecution of one government
agency on the initiative of another and any move towards it is swiftly
frustrated. Because they involve criminal sanctions, the standard of proof
(beyond reasonable doubt) is higher than it would be in ordinary court
action (on the balance of probabilities). Similarly, criminal action ordinarily
lies against a natural person who is often either the agent of the guilty
party (the lowly file clerk) or the remote instigator (the guilty Chief
Executive who did not actually do the deed). Moreover, the best evidence
is usually the testimony of the person who would have to be prosecuted
and therefore hard to obtain. Even if all these obstacles are overcome,
the defence could argue absence of mens rea (although records were
indeed destroyed without approval, there was no criminal intent).
Happily for bureaucracy, none of these issues has ever been tested. I
have even heard it argued that the criminal sanctions were never intended
to be used against bureaucrats, that they are there to prevent wanton
or reckless destruction by ordinary people in search rooms, not to convict
civil servants going about the Queen's business! It remains unclear who
would investigate (the police?), what role the archives authority has,
and who decides to prosecute. The fact remains that so long as our society
regards the destruction of official records as less serious than the theft
of soap13, these provisions (though not without totemic
value) will continue to be a dead letter.
The apparent pointlessness of seeking prosecutions fits in well with
a temperamental repugnance for confrontation on the part of many archivists-
When constabulary duty's to be done -
(to be done)
A policeman's lot is not a happy one
(happy one)14.
This has led to a view within the profession (accompanied by the appropriate
rhetoric) that compliance is only about "training", "education", "assistance",
"partnerships", and "co-operation" with our "clients", on the basis that
you can catch more flies with honey and that good will won't take root
in the hearts of those you are trying to imprison.
For third generation legislation, several issues arise. Leaving aside
the wider issues of compliance, the question remains : how are specific
prohibitions and obligations arising under the legislation to be enforced?
As the range of obligations (on either side of the boundary) increases,
it is clear that criminal sanctions will not, indeed, be the only or the
most appropriate ones (without conceding to those who want to get rid
of them that they should be done away with altogether). The fact that
those which remain could apply against the archives authority itself and
its employees might resolve what its role in investigation should be :
For duty, duty must be done;
The rule applies to everyone,
And painful though that duty be,
To shirk the task were fiddle-de-dee!15
The core question is : what alternative enforcement mechanisms ("education",
"assistance" and other compliance mechanisms apart) are available?
One method which has (arguably) always been available is what used to
be called the prerogative writs. These apply the principle that a court
can intervene into the administrative process where a statutory obligation
is being breached or ignored to compel a government official or agency
to carry out that duty (mandamus) or to prevent a breach of duty
(prohibition). These ancient administrative law remedies have been
in part the basis for a much more active litigation of recordkeeping matters
in North America and there is no reason why they could not be used here
(including, conceivably, by the archives authority itself)16.
This road to enforcement has certain advantages. First, it removes all
the difficulties with criminal prosecution. Second, it is available to
ordinary citizens (provided they can establish "standing" before the court)
and they may not be intimidated by governments reluctant to have agencies
prosecuted. Thirdly, and best of all, the enforcement mechanism is the
court itself. Once a writ is issued, the agency must comply or be in contempt
of court, and courts suffer contempt with much less equanimity than wimpy
archivists.
The new Act introduces, for the first time, an enforcement mechanism
based on this reasoning. It specifically empowers the SRA to make an application
in the New South Wales Supreme Court seeking an injunction restraining
a person who is "contravening or is proposing to contravene a provision
of this Act" from doing so or "requiring the person to do any act or thing
necessary to avoid or remedy the contravention" (s. 72). For the purposes
of this section, it should be noted that "person" is defined (s. 3) to
include "a public office and a body (whether or not incorporated)". This
mechanism operates in respect of all statutory obligations under the new
Act, not just over unlawful disposal.
The fact no doubt remains that the use of this provision will still require
courage and determination on the part of the archives authority. It remains
to be seen whether or not it falls into disuse like the old prosecution
provisions. It represents a challenge for other archives authorities too
to take it up and urge its introduction into legislation elsewhere.
Conclusion
Compliance is the key issue. The road not taken would disestablish much
of the role and purpose of the archives authorities without replacing
them with stronger, more effective processes for corporate governance.
The temptation to discard what we have achieved in earlier legislation,
in conformity with current fashions for deregulation, while cloaking this
in good post-custodial rhetoric, is a major threat. We must beware. Time
will tell.
There are other notable provisions in this Act. The decision to borrow,
from the 1973 Victorian Act, the obligation to make and keep "full and
accurate" records (s. 12) and the standard-setting provisions (s. 13)
was a wise one. Extensive work was done to bring the recovery provisions
up to date, including a courageous attempt to give reciprocal application
to other States' recovery laws (s. 48) which, although enacted unilaterally,
offers other archives authorities around the country the opportunity to
inaugurate (for the first time) a national system for regulating the trade
in State estrays.
Less happily, the Act stops short of a truly satisfactory resolution
of the access problem. It avoids the impossible work-loads of the Commonwealth
system and provides (at least) a statutory obligation to make a decision
after thirty years (s. 51). Our archival access systems all now need substantial
overhaul and I am on record for over ten years as to what I think should
be done (applying the so-called "Victorian option" which I argued, successfully,
before the Victorian Legal & Constitutional Committee in the 1980's17
and which they subsequently recommended, unsuccessfully, be adopted).
There is no space here to open the access debate, but it badly needs to
be resolved.
The New South Wales Archives Authority set out to update the 1960 Archives
Act from first to second generation legislation. On the way, it found
itself overtaken by new, fresh, and stimulating ideas. The resulting legislation
cannot be claimed to be model third generation legislation, but it goes
some considerable way and I hope others will follow and extend upon what
has been achieved.
END-NOTES
1. Note on Terminology and Usage
: In this article, I use the term "records" to refer to the totality of
records created by a Government. The agency created to give effect to
an Act, I call the "archives authority". The term "archives" is used here
to refer to a subset of Government records defined by appraisal status
or location (e.g. noncurrent records having "historical value" held by
an archives authority).
The Victorian Act (1973) annihilated the legislative distinction between
records and archives. The Commonwealth Act (1983) and South Australian
Act (1997) have done the same. Regrettably, the distinction has begun
to creep back into the thinking and emanations of archives authorities
in some of these jurisdictions with the implication that archives (or
records of "enduring" or historical value) possess some particular status
or relevance.
The New South Wales Act (1960) established three categories of record
(viz. Public records, Public archives, and State archives). In the new
Act (1998), the distinction between "State record" and "State archive"
is retained, the latter term now defined to mean records (regardless of
location) over which the new State Records Authority (SRA) has assumed
control.
2. Sue McKemmish and Michael Piggott (eds), The Records
Continuum : Ian Maclean and Australian Archives First Fifty Years
(Melbourne, Ancora Press in association with Australian Archives, 1994),
pp. 206-232.
3. See end-note 7.
4. "From Dust Bins to Disk-drives",
in The Records Continuum, op cit., pp.210-211.
5. I take this opportunity to pay tribute to John's persistence
and vision in having this legislation developed and enacted. This is to
say nothing of his enduring friendship and support, which I value highly.
From a consultant's point of view he was that rarest of clients : he knew
what he wanted!
6. "From Dust Bins to Disk-drives", in The Records
Continuum, op cit., p. 212.
7. The Western Australian State Records Bill 1998
follows almost exactly the pattern given here for third generation laws.
Its most significant feature is that it separates the role of the archives
authority, the proposed independent State Records Commission (SRC), from
any part in the governance of the State Records Office (SRO). The Commission
will be responsible for implementing a regime of Record Keeping Plans
throughout government. Every agency, including the SRC and the SRO, must
have a Plan. The Bill specifies what the Plan has to include, and obliges
every agency and its staff to comply with the Plan. These Plans will determine
what records are made, how long they are kept, which can be disposed of
and how : including what does and doesn't go to the SRO. In addition to
monitoring compliance and inquiring into breaches of the Act, the SRC
has a duty to enunciate the principles and standards governing the implementation
and operation of Record Keeping Plans.
8. Managerialists hold that professionals are, for a variety
of reasons, poor managers of the functions they carry out. One reason
is that they are presumed (unlike professional managers and entrepreneurs)
to have a vested interest and career stake in making work for themselves.
"Professional capture" is the pejorative term applied by such people to
situations where activities are being undertaken by people who know what
they are doing.
9. The 1983 Archives Act (Commonwealth) certainly
set out to avoid any such distinction. It is unfortunate, therefore, that
the recent Australian Law Reform Commission review sought to establish
it by arguing that records of "enduring value" were of some special concern
to the archives authority - and actually thought they had found it in
the 1983 Act in the definition of "archival resources of the Commonwealth".
Their recommendations that new legislation should establish such a distinction
and give the Archives special responsibility points a different direction
for Commonwealth legislation than the one I am painting here. Some legislation,
such as New Zealand (1957) and New South Wales (1960) make "noncurrency"
the defining characteristic of a separate class of archives to distinguish
between those archives which have been transferred and those which have
not. The Commonwealth Act (1983) does have a category "material of the
Archives" to identify Commonwealth records (regardless of age, currency,
or appraised value) which are housed in and managed by the Archives, but
this concept is not the same.
10. As will be noted below, this aspect of second generation
legislation does not necessarily have to involve empowering the archives
authority to set rules and see to their implementation. Under second generation
legislation, however, this is almost invariably necessitated by the existence
of an archival boundary - the area of operation for such rules being the
realm outside of the archives authority.
11. Some exceptions to this general rule are provided
for, e.g. where disposal is mandated by statute, ordered by a court, or
determined by resolution of Parliament.
12. "Dust Bins to Disk-drives", in The Records Continuum,
op cit., p.220.
13. This is an obscure reference to one of the more bizarre
episodes in the notorious "Heiner Case" in Queensland - where the authorities
argued that prosecution for records offences should not be undertaken
because they were "stale" while simultaneously pursuing a hapless railway
worker for petty pilfering which ante-dated those alleged offences by
years.
14. W.S. Gilbert, The Pirates of Penzance (1880),
Act II.
15. W.S. Gilbert, Ruddigore (1887), Act I
16. I know of only one instance in which a writ has been
sought in a recordkeeping matter and that was sought in Queensland against
the State Archivist - but (so far as I am aware) it never came to court.
17. Parliament of Victoria, Legal & Constitutional Committee,
Thirty-Eighth Report to the Parliament: Report upon Freedom of Information
in Victoria, Nov., 1989 - Chapter 6 - "Integrating Public Access Systems:
The Freedom of Information Act 1982 and the Public Records Act
1973. See also Queensland Electoral and Administrative Review Commission,
Report on Review of Archives Legislation, June 1992 - Chapter 5
- "A Right of Access to All Public Records". The "Victorian option" recommends
establishing an obligation on agencies to make a decision on access in
the open period (as in the new Act) and supposes that this will be done
at the level of whole classes or consignments of records. It allows an
unfettered discretion for agencies to close whole groups of records in
the open period but affords a mechanism for the public to seek access
to such records (i.e. open period records within a class of records which
have been closed) by means of a Freedom of Information or FOI-like process,
involving document-by-document examination by the agency concerned and
a right of appeal. This relocates responsibility for access release from
the archives authority back to the agency responsible for the records.
It also makes those agencies responsible for things like privacy or security,
and not the archives authority, responsible for ensuring that their purposes
are achieved.
...
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