There are a number of different laws which affect how Australian Government agencies create and manage their records. Some, like the Acts outlined below, are relevant to almost all government agencies while others are agency specific.
For more detailed information see:
The Archives Act 1983 empowers the Archives to preserve the archival resources of the Commonwealth – those records designated ‘national archives’.
Under the Act it is illegal to destroy Commonwealth records without the permission of the Archives, unless destruction is specified in another piece of legislation.
The Act also establishes the right of public access to Commonwealth records that are more than 30 years old.
The Freedom of Information Act 1982 provides for public access to documents kept by Australian Government departments which are less than 30 years old. The Archives Act regulates access to records older than 30 years.
In their annual reports, departments must state the types of information and records they keep. When a member of the public requests information, the department must identify and preserve all relevant sources, including records, until a final decision on the request is made. The Freedom of Information Act also sets out how the department may correct, annotate or update records if a member of the public shows that the information in them is false.
The Privacy Act 1988 aims to prevent the misuse of personal information. It specifies that agencies can use information about individuals only for lawful purposes that relate directly to the role of the agency. Agencies must ensure that the information they keep is secure, accurate, relevant, complete, and not misleading. The Act also gives people a right to see records about themselves.
Records over 30 years old are exempt from the Privacy Act. Access to these records is controlled through the Archives Act.
The Evidence Act defines what records can be used as evidence in a Commonwealth court.
All agencies need to take account of evidence legislation. A court may need to examine records as evidence of an organisation’s decisions and actions. General advice on the impact of the Evidence Act 1995 is given in Records in Evidence: The Impact of the Evidence Act on Commonwealth Recordkeeping.
The Electronic Transactions Act 1999 encourages online business by ensuring that electronic evidence of transactions is not invalidated because of its format. This Act does not authorise the destruction of any Commonwealth records, whether originals or copies. The obligations placed on agencies under the Archives Act 1983 in relation to the preservation and disposal of Commonwealth records continue to apply.
The General Disposal Authority for Source Records that have been Copied, Converted or Migrated details the circumstances under which copied source records can be destroyed in compliance with the Archives Act. For records that are not covered by this disposal authority your agency will need to seek specific authorisation from the Archives via the Agency Service Centre.
The Financial Management and Accountability Act 1997 states that an APS employee who misapplies, improperly disposes of, or improperly uses Commonwealth records may be in breach of the Financial Management and Accountability Act (s. 41). Regulation 12 of the Act requires that the terms of approval for a proposal to spend money be recorded in writing as soon as practicable.
Commonwealth records fall within the meaning of 'public property' as defined in the Financial Management and Accountability Act
The Crimes Act 1914 outlines crimes against the Commonwealth. Several parts of the Act relate to records. For example, section 70 prohibits public servants (or anyone working for the Australian Government including contractors and consultants) publishing or communicating facts, documents, or information which they gain access to through their work, unless they have permission to do so. This includes taking or selling records which should be destroyed.
This Act also makes it an offence for someone to intentionally destroy documents that they know may be required as evidence in a judicial proceeding.
Agencies need to identify records management requirements when undertaking records appraisal or when designing and implementing a records management system. Part of this process is to identify the legislative requirements for creating, maintaining and disposing of Commonwealth records.
Some legislative requirements apply to many agencies. Occupational health and safety legislation, for example, requires an organisation to keep certain types of records for certain periods of time. Requirements that apply to all agencies are included in the National Archives’ Administrative Functions Disposal Authority.
Other legislative requirements may apply only to the particular business of one or some agencies. For example, the Telecommunications (Interception and Access) Act 1979 states that copies of telephone taps (something that only a few agencies have permission to use) must be destroyed once the Director-General of Security decides they are no longer needed. Each agency needs to be aware of the legislation governing its own records practices.