Retaining records for legal proceedings

Your agency should not destroy information, including records, where the agency knows that it is reasonably likely that that information may be used as evidence in current or future legal proceedings.

The National Archives recommends that agencies:

• develop processes for monitoring and identifying legal proceedings, both current and potential, that may relate to records controlled by the agency
• take action to prevent the destruction of any records that may relate to the proceedings identified.

These processes should ensure that records are not destroyed if your agency knows it is reasonably likely that those records may be required in legal proceedings. This applies whether the proceedings are in progress, pending or reasonably likely to commence in the future. The suspension of destruction must be implemented regardless of any existing disposal authorities issued by the Archives and remain in place until the proceedings (including appeals) are completed, or it is confirmed that the records are not required.

Agencies required to produce records in legal proceedings

Under the Crimes Act 1914, it is an offence for a person to intentionally destroy documents they know are, or may be, required as evidence in a judicial proceeding in order to prevent them being used in the case.

Disposal freezes

Occasionally, the Archives and other agencies identify current or possible legal proceedings with implications for records controlled by agencies across the Australian Government. In such cases, the Archives may issue a formal 'disposal freeze' to suspend the destruction of records relating to the issues identified.

There are currently four disposal freezes in place covering records relating to:

• selected personnel and superannuation records concerning eligibility to join a Commonwealth superannuation scheme
• the Vietnam War
• atomic testing
• the rights and entitlements of Aboriginal and Torres Strait Islander people.

Agencies should monitor the Archives website for updates on disposal freezes.

Further information

More information about managing records as evidence in legal proceedings is available at Records in evidence.

For information about your specific legal responsibilities, consult with legal staff within your agency.

For general advice on recordkeeping or disposal freezes, contact the Agency Service Centre.