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Legislation

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While we often think of laws as being the ultimate source of a framework, we need to regard legislation as an instrument for achieving the Government's policy objectives - in this context, for government recordkeeping - and as deriving from them. The Archives Act had been reactive, addressing problems as they have arisen, rather than preventing them from arising.

The State Records Act 1998 replaced the Archives Act 1960.

The State Records Act applies to 'public offices' as defined in s.3(1). This definition is much wider than the previous Act and includes parliament, courts and tribunals, local government bodies, State owned corporations, the universities and the public hospital system. The records of the Governor, Parliament and the courts are automatically covered only by Parts 3 (Protection of State Records) and 5 (Recovery of estrays and other State records). These jurisdictions can 'opt in' to be covered by the remaining parts of the Act by agreement. The Act outcomes based and has strong recordkeeping provisions in Part 2 (Records management responsibilities of Public Offices).

Pyramid Legislation

Key records management provisions of the Act require 'public offices' to:

  • make and keep records that fully and accurately document their operations and administration, and
  • establish and maintain a records management program to be managed in conformity with standards and codes of best practice formulated by State Records.

Other key parts of the Act include improved provisions governing the disposal of State records and for the recovery of estrays, (estrays are records that have been alienated from the possession of their legitimate custodian, in this case the NSW Government.) Part 6 of the Act (Public access to State records after 30 years) includes a statutory basis for a right of public access to records more than thirty years old.

Thus, while the Act does what any government archives legislation must do - governing the identification, preservation and use of archives - it takes a strongly 'continuum-oriented' approach, having an impact on the making and keeping of records in New South Wales public offices and on their management as current records. This is an increasingly common feature of modern government records legislation in Australia and overseas. For further information about this issue, see the Australian Law Reform Commission, Issues Paper 19: Review of the Archives Act 1983, December 1996, especially pp. 35-42.