Summary of provisions

The State Records Act 1998 is designed to:

• ensure the better management of Government records throughout their existence
• promote more efficient and accountable government through improved recordkeeping, and
• provide better protection for an important part of the State's cultural heritage.

The Act replaced the Archives Act 1960 and established the State Records Authority of New South Wales, known as State Records, and its Board.

Who is covered by the State Records Act?

The legislation covers a wide range of public sector bodies, including:

• NSW Government agencies
• State owned corporations
• local government
• the public hospital system, and
• universities.

• In addition, the records of Parliament and the courts are subject to most of the provisions of the Act by the agreement of those bodies.

The Act refers to all the types of bodies covered as 'public offices' and the records they generate as 'State records'.

What are the key provisions of the State Records Act?

Part 1 - Preliminary

Defines key terms and concepts.

Part 2 - Records management

The purpose of this part of the Act is to set out the records management responsibilities of public offices.

The Act requires CEOs of public offices to ensure compliance with the Act and public offices to:

• make and keep full and accurate records
• institute a records management program in accordance with standards and codes of best practice for records management. These are based on world best practice.
• ensure the safe custody and proper preservation of State records
• maintain accessibility to electronic records, and
• make arrangements with State Records for monitoring and reporting on the implementation of the public office's records management program.

Part 3 - Protection of State records

The purpose of this part of the Act is to protect State records from unauthorised destruction and disposal by public offices and to put into place a more systematic means of identifying those records which are of continuing value (the State archives).

Under the Act the disposal of state records is permitted in a number of circumstances, notably:

• authorisation by State Records
• certain pieces of legislation under which a public office operates, or
• through 'normal administrative practice' as defined in the Regulation.

Part 4 - Control of State records

The purpose of this part of the Act is to ensure that records of continuing value and no longer in use by the public office that generated them are controlled and properly managed as State archives.

Records become State archives by passing into State Records' control. State Records is entitled to control records when they are no longer in use for official purposes in the public office responsible for them. Records more than 25 years old are assumed to be no longer in use for official purposes, though a public office can make the determination that they are still in use.

A public office can pass records to State Record's control either by transferring them to its custody or by entering an agreement whereby some other body (which may be a public office) has custody.

This part of the Act will become increasingly important as more records are created electronically and it becomes less practical or desirable to transfer physical custody of records to State Records.

Part 5 - Recovery of State records

The purpose of this part of the Act is to protect archival estrays (those official records which have been taken out of official hands).

It does this by giving State Records power to recover estrays both within and outside of New South Wales. The Act also allows interstate Government archives to recover similar interstate material within New South Wales.

Part 6 - Public access to State records

The purpose of this part of the Act is to ensure a balance between the protection of sensitivity in records for as long as necessary on the one hand and the rights of the people of New South Wales to access State records on the other.

There is an explicit presumption that records that are at least 30 years old should be open to public access. This ensures the protection of any confidential or sensitive personal information in records. 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.

The Act requires public offices to give an access direction (whether the records are open or closed) for all their records that are at least 30 years old in the "open access period". Public offices are to use guidelines approved by the Attorney General when making this assessment.

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

Part 7 - The State Records Authority of New South Wales

The Act also defines the powers and responsibilities the State Records Authority of New South Wales which administers the Act.

There is also a Board which consists of nine members representing the public sector, the private sector, the history profession, Parliament, State owned corporations and the judicial system. The main functions of the Board are to:

• approve the records management standards and codes of best practice developed by State Records according to world best practice
• authorise the disposal of State records, and
• determine the policies and strategic plans of the State Records Authority.

Part 8 - Miscellaneous

Part 8 comprises a number of miscellaneous provisions.

For further information

For further information or enquiries about the Act, please contact the Executive Officer

July 2005