Legislative Requirements
Introduction
Records and information professionals charged with the keeping of State records are required to be aware of a wide range of legislative issues. A number of Western Australian Acts include provisions that relate to the keeping and management of records generated by State and Local Government agencies.
The most significant piece of legislation impacting upon the management of State records is the State Records Act 2000.
The State Records Act 2000
The State Records Act and the accompanying State Records (Consequential Provisions) Act received the Governor's assent on the 28th November 2000. The State Records Act 2000 (the Act) ensures accountability and transparency in the recordkeeping practices of State and Local Government agencies in Western Australia. It replaces the archives and recordkeeping provisions of the Library Board of Western Australia Act 1951-1983.
The Act provides for the establishment of the State Records Commission (the Commission), which consists of four members: the Auditor General, the Information Commissioner, the Ombudsman, and an appointee with recordkeeping experience from outside Government.
The Commission's functions include establishing principles and standards to govern how agencies manage their records, and selecting those records which should be preserved for their archival value. The Commission issues standards and guidelines pertaining to recordkeeping matters and to the requirements of government agencies' recordkeeping plans.
A cornerstone of the legislation is an instrument of accountability known as a "recordkeeping plan". The plan is a document that must be formulated by every Government organisation including public sector agencies, local governments, Royal Commissions, Parliament itself, Cabinet and Ministers. The recordkeeping plan must set out the matters about which records are to be created by an agency, how those records are to be managed in the context of the agency's functions, and for how long records are to be kept. The plans must be submitted to the Commission for initial approval, and government agencies are required to report periodically to the Commission in order to demonstrate continued compliance with their recodkeeping plan.
In addition to monitoring compliance by government agencies with their respective recordkeeping plans the Commission may also inquire into breaches of the legislation. The Commission will report direct to Parliament and will provide Parliament with an annual report on the operation of the legislation. It can at any time submit a written report to Parliament about contraventions by a Government agency.
For administrative and resourcing purposes the operational arm of the recordkeeping functions of the Commission is vested in the State Records Office, headed by the Director of State Records. Through the State Records Office the Commission seeks to support agencies in the continued improvement of their records and archives management activities, and promote best practice in these areas.
After 25 years, an organisation must transfer its records to the State archives collection, unless that agency has received a dispensation from the State Records Commission. Generally speaking, State archives will be available to the public when they are 25 years old, but with the concurrence of the Commission some confidential records may be restricted for a longer period. In the latter category, such terms must be reviewed at five yearly intervals.
Heavy penalties are provided for agencies that do not keep a record in accordance with an approved recordkeeping plan or illegally destroy a record, and for anyone who has illegal possession of a State record.
All records and information professionals charged with the keeping of State records should ensure that they familiarise themselves with the provisions of the State Records Act 2000.
Copies of the State Records Act 2000 and the companion State Records (Consequential Provisions) Act 2000 are available for purchase from the State Law Publisher and can also be viewed online through the State Law Publisher website.
Other Relevant Legislation
In addition to the requirements of the State Records Act 2000, records and information professionals should also be aware of other legislation which applies to the proper management of State and Local Government records. In particular, the following State Acts may be of interest:
Criminal Code Act 1913
Under the Criminal Code Act 1913 (Section 85) any public officer found guilty of falsifying records by making false entries, omitting to make an entry, damage or destruction, can incur penalties, including imprisonment.
Evidence Act 1906 and Acts Amendment (Evidence) Act 2000
These Acts include requirements for records where they are produced as evidence. The Evidence Act 1906 has implications for the destruction of records and the requirements for creating acceptable reproductions.
The Acts Amendment (Evidence) Act 2000 expands upon the best evidence provisions of the original Act to facilitate the admission of documentary evidence created using modern information technology.
Financial Management Act 2006
This Act includes requirements for the management of financial and accounting records.
Freedom of Information Act 1992
The Freedom of Information (FOI) legislation prescribes rights and procedures for access to documents held by Government agencies and includes recordkeeping requirements. Once a request for access under the FOI Act has been lodged all files relevant to that request, regardless of whether they are due for destruction, must be identified and preserved until action on the request and on any subsequent reviews by the Information Commissioner or the Supreme Court are completed.
Limitation Act 1935 and Limitation Act 2005
Limitations have been set by law on periods within which court actions can be initiated by an offending party. Once the period has expired the party sustaining loss or injury cannot sue, and the party causing loss or injury is no longer held accountable. It is therefore expedient for organisations to select and keep those records that might be useful in the event of having to prosecute or defend an action, for the period of limitation.
Public Sector Management Act 1994
The Public Sector Management Act outlines the functions of Chief Executive Officers of public sector agencies which include responsibility, subject to the State Records Act 2000, for ensuring that the organisation keeps proper records.
To purchase printed copies of the Acts mentioned above please contact the State Law Publisher. All current legislation can also be viewed online at the State Law Publisher website.
Executive Directives
Periodically directives are issued by the Premier or Ministers which may have implications for the management of State records. The following are examples of executive directives currently in force that impact upon the recordkeeping functions of State and Local Government agencies.
Premier's Circular Number 2003/02
The introduction to a State organization's Retention and Disposal Schedule must include a statement about the protection of records relating to Aboriginal people, in accordance with the Premier's Circular Number 2003/02, to the effect that:
"records relating to Indigenous individuals, families or communities which concern any children, Indigenous or otherwise, removed from their families for any other reason, whether held by government or non-government agencies, be brought to the attention of the Family Information Records Bureau [FIRB] and reflected in agency Recordkeeping Plans."
To view Premier's Circular 2003/02 click here.
In preparing their Retention and Disposal Schedules, organizations are to remain alert in identifying and preserving records that fall within the scope of the policy outlined in Premier's Circular 2003/02 and bring them to the attention of the FIRB for advice on their significance.
FIRB advice is to be reflected in the organization's Schedule. Records that are discovered are not to be destroyed unless consistent with the provisions of the organization's approved Retention and Disposal Schedule.
Where FIRB advice on the significance of records is inconsistent with the provisions of an organizaton's existing approved Retention and Disposal Schedule consult the State Records Office.
Treasurers Instructions 804 and 805
The Treasurers Instructions are a series of directives issued by the Treasurer to accompany the Financial Administration and Audit Act 1985. A number of these Instructions are relevant for recordkeeping and information professionals although the most significant are Treasurers Instructions 804 and 805, which stipulate the policy in force at the present time for the management of financial and accounting records in State Government agencies. These instructions specify that accounting records must be retained to provide an adequate audit/management trail of financial transactions to facilitate auditing by both internal audit staff and the Office of the Auditor General and to act as prima facie evidence in a court of law in the event of a legal dispute.
Further Information
If you require further information on legislation, that is not covered within this section please feel free to contact the staff of the State Records Office on (08) 9427 3360 or via email at sro@sro.wa.gov.au.
