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State Records Amendment Act 2005

Key Changes

Limitation period for prosecution of unauthorised disposal

A limitation period of two years is established for prosecuting offences relating to unauthorised disposal. Previously a 6 month period operated by virtue of the Criminal Procedure Act 1986. (Disposal includes abandoning, transferring possession or ownership, damaging or altering a State record.)

The increased limitation period only applies to an offence that has been committed (or alleged to have been committed) from the commencement of the State Records Amendment Act 2005.

What does the change mean for my organisation?

The change does not alter the statutory obligation to dispose of records legally. Public offices should continue to notify State Records if they become aware of any cases of illegal disposal of State records. Public offices and their employees need to be aware that prosecution for unauthorised disposal is now more likely.

Guidelines on normal administrative practice

The guidelines on normal administrative practice are to be included in the regulations, rather than as a schedule to the Act.

What does the change mean for my organisation?

  • This will make it easier to update the guidelines as necessary
  • The change does not alter the provisions relating to normal administrative practice or the status of the guidelines
  • The regulations are being reviewed. While it is anticipated that the guidelines will remain substantially the same, some updating is expected.

Private records in collections of public offices

The definition of a State collecting institution is changed so that, when a public office is prescribed as a State collecting institution by regulation, private records in its collection will be excluded from the coverage of the Act, but State records in its collection will remain covered by the Act.

What does the change mean for my organisation?

  • The change does not affect most public offices
  • It is anticipated that a number of public offices will be prescribed by the new regulation
  • The current arrangements for State collecting institutions as listed in the Act are unchanged, and the State records held in their collections before the commencement of the Act are not subject to the records management, control and access provisions of the Act.

Public access to State records after 30 years

Substantial changes have been made to provisions relating to public access to State records after 30 years.

1. Presumption in favour of public access to State records that are at least 30 years old

There is an explicit presumption that records that are at least 30 years old should be open to public access.

Any assessment as to whether records should be open or closed to public access must have regard to the presumption that records should be opened to public access after 30 years.

What does the change mean for my organisation?

  • The change does not affect existing safeguards to protect sensitive information in the open access period records through the making of appropriate closed to public access directions
  • Public offices are required to follow guidelines approved by the Attorney General. The guidelines are currently under review.

2. Applications by the public to have an open to public access direction

The time available to make an access direction in response to a request from any person, for records not yet subject to an access direction, is reduced from one month to 14 days.

What does this change mean for my organisation?

  • The change means that your organisation will need to respond to such an application in less time than before.

3. Reasons to be given for closing records to public access

Public offices are now required to give reasons for giving a closed to public access direction, when requested by State Records or by any person who has had an application for an open to public access direction for the record refused.

What does the change mean for my organisation?

The procedures for notifying State Records of an closed to public access direction already require the public office to give reasons. The Act now gives this requirement statutory force and extends it to members of the public who have had an application for an open to public access direction refused.

4. Mechanism for Ministerial review of access directions

State Records can now request a public office to have an access direction reviewed by the Minister responsible for the public office.

The responsible Minister must finalise the review by confirming the access direction, or directing the public office to revoke the access direction and replace it with another access direction specified in the direction.

If the review is not finalised within 3 months, or the responsible public office does not comply with a direction of the responsible Minister within 14 days after it is given, the access direction under review is revoked (with the result that there is no access direction for the records concerned).

The confirmed or new direction cannot be revoked without the permission of the Minister or State Records.

What does the change mean for my organisation?

The change means that, if State Records believes a direction made by your public office:

  • is inconsistent with the spirit of the access provisions of the State Records Act, including the presumption that most records should be opened after 30 years;
  • is contrary to the Attorney General's Guidelines to making access directions under Part 6 of the State Records Act 1998; or
  • creates an inconsistent framework of public access to State records across government,

State Records can request your organisation to have its Minister review the direction.

We encourage public offices to consult with State Records.

5. Early access to State records

Public office staff providing early access under the Act are now protected from liability.

When authorising early access, a public office is to apply the principles established in the Act by section 52 for an assessment.

What does the change mean for my organisation?

  • The process for authorising early access to State records remains unchanged.

An additional point to remember?

Every public office must make access directions for the open period records for which it is responsible.

Other changes

A number of mechanical changes have been made to the State Records Act.

No changes have been made to:

  • Part 2 - Records management responsibilities public offices;
  • Part 4 - Authority entitled to control records not currently in use; or
  • Part 5 - Recovery of estrays and other State records.

Need more information?

For issues relating to Public Access, please contact Warwick Hunter, Policy Officer, Access & Information at warwick.hunter@records.nsw.gov.au.

For issues relating to creation, retention and disposal of State records, please contact Cassie Findlay, Senior Project Officer, Government Recordkeeping at cassandra.findlay@records.nsw.gov.au

For further information or general enquiries about the Act, please contact the Jim Sinclair, Executive Officer at jim.sinclair@records.nsw.gov.au.