Stokes, Jim --- "Looking Forward, Looking Back: National Archives Under Review" [1998] ALRCRefJl 14; (1998) 72 Australian Law Reform Commission Reform Journal 64

• Reform Issue 72 Autumn 1998

---

Reform Issue 72 Autumn 1998

This article appeared on pages 64 – 66 of the original journal.

Looking forward, looking back: national archives under review

The Australian Law Reform Commission’s review of the Archives Act is nearing completion. Dr Jim Stokes*examines the issues under investigation.

Recordkeeping is an activity we tend to take for granted until something goes wrong. Anyone who has sought to contest the accuracy of information held by a government agency knows that it can be a frustrating - even frightening - process, especially if they feel that they are conducting a dialogue with a computer that appears to be impervious to human intervention.

Directly or indirectly we all have dealings with a range of Commonwealth, State and local government agencies. These dealings often involve the payment of money to or by the agencies. Some involve the recording of crucial information, such as births, deaths and marriages and the granting of citizenship. We assume that full and accurate records will be kept because if they are not, the consequences for individual citizens can be quite inconvenient, costly and sometimes distressing.

Beyond the area of individual rights and obligations, we assume that governments will maintain adequate records of what they are doing for reasons of both current accountability and history. Some records document decisions and actions of such importance that they justify retention forever on administrative grounds alone, quite apart from their value for historical research. Most records, however, eventually cease to be required for any foreseeable administrative purpose and it is then necessary to identify the small proportion that are worth retaining for historical purposes.

On occasions, even this latter group can have an unexpected return to administrative use. During the past 15 years, there have been major federal government inquiries in areas such as the use of herbicides in the Vietnam War and poison gas in World War II; British nuclear tests at Maralinga; the use of asbestos in buildings and ships; the migration of Nazi war criminals to Australia; and the removal of Indigenous children from their families. These inquiries have drawn heavily on historical records and their findings have been influenced significantly by the information that had survived, sometimes quite fortuitously, in those records.

Commonwealth records

For many years Commonwealth government agencies created and disposed of records as they saw fit. During World War II, the Commonwealth National Library and the Australian War Memorial assumed joint responsibility for establishing a consistent Commonwealth archival policy so that records could be assessed systematically and either disposed of or preserved in accommodation more suitable than the cellars, sheds and decommissioned toilets that had, all too often, been used for such purposes.

The Commonwealth Archives Office was set up as separate entity from the National Library in 1961 (although the War Memorial continued to be responsible for records created by the Armed Services in war and warlike operations) and was renamed Australian Archives in 1974. Drafting of an Archives Bill did not commence until that same year and it was enacted in 1983.

Reviewing the Archives Act

In the 14 years that the Archives Act 1983 (Cth) has been in operation, recordkeeping has been revolutionised by developments in electronic recordkeeping and communications systems. There have also been significant changes in the structure of the Commonwealth administration, with many Commonwealth functions being wholly or partially privatised and significant changes in the way services are delivered to the community.

In August 1996, the Attorney-General asked the Commission to review the Archives Act to identify the basic purposes and principles of national archival legislation and to decide whether these have been achieved under the present Act. After the release of an issues paper and an extensive consultation process, the Commission published a draft recommendations paper in January this year. At the time of publication of Reform, work on the final report is nearing completion.

The NAA

In February this year, the federal government announced that Australian Archives would be renamed National Archives of Australia (NAA). The name change was suggested by the Commission in its draft recommendations paper.

The NAA is currently an unincorporated body within the Department of Communications and the Arts. The Commission believes that, to manage recordkeeping and archival policy effectively, the NAA should become an independent statutory authority. This would enable it to have the independence and standing to formulate recordkeeping and archival policy for the parliamentary, judicial and executive arms of government.

The draft recommendations paper also suggested the replacement of the present Advisory Council with a governing council representative of a wide range of stakeholder opinion and expertise.

Creating records

One of the strongest impressions that the Commission gained from its consultations with major stakeholder groups was that there was wide-spread concern with the current standard of Commonwealth recordkeeping.

Major symptoms of this problem include the fragmentation of traditional paper-based recordkeeping systems through management devolution and resource constraints and inadequate relationships between electronic and paper-based systems. (It must be said, however, that there are also some very good systems and competent records managers, often working under difficult circumstances.)

In an area as large and complex as Commonwealth recordkeeping it cannot be assumed that the right systems and the right people will just appear. The Commission is well aware that unnecessarily centralised or prescriptive standard setting can be counter productive; nevertheless recordkeeping is so fundamental to effective Commonwealth administration that certain general statutory obligations are appropriate. As part of its draft recommendations, therefore, the Commission has suggested:

• the NAA should have the power to issue mandatory standards for the management of Commonwealth records from creation to archiving or disposal;

• the Auditor-General should have primary responsibility for ensuring that these recordkeeping standards are complied with, but the NAA should be required to report annually on the state of Commonwealth recordkeeping.

Electronic records

The Archives Act review is taking place against a background of rapid technological change. Most records are now created electronically on personal computers and are often transmitted and modified on electronic mail systems. But in many agencies, personal computers and

e-mail systems are not linked to electronic recordkeeping systems that can reliably store and retrieve the records they transmit.

Consequently, the long term survival of important records can depend on whether a busy officer appreciates their value and finds time to print them and place them on a paper file. Some agencies are now planning electronic systems that can deal effectively with all aspects of records management, but the new archives legislation will clearly have to accommodate a range of technologies.

The Commission has sought to make draft recommendations which would safeguard the basic elements of recordkeeping, regardless of the format of the records concerned. However, it has made specific draft recommendations relating to electronic records, including that:

• the NAA should give high priority to developing strategies which would make appraisal of the prospective value of records an essential part of the record creation process. At present, many records are not assessed until they have been in existence for 10 or 20 years. While this has worked reasonably well for paper records, electronic records appraisal needs to be an integral part of systems design;

• the NAA should have the power to require other Commonwealth agencies to retain custody of records of enduring value in cases in which such records cannot be transferred to the NAA without significant loss of data or functionality. This would ensure that valuable electronic records are preserved, even if the NAA does not have the specialised technology necessary to receive them;

• the legislation should include a statutory obligation to maintain the accessibility and functionality of electronic records.

Accessing records

The present Act applies an access regime to records more than 30 years old that is essentially similar to that of the Freedom of Information Act 1982 (Cth) (FOI Act). The main features of the regime include: the listing of a specific series of categories into which records must fall if they are to be withheld (exempted) from public access; the requirement that a written statement must be provided to justify any decision to exempt records; and the right of any person who has been denied access to records to seek review of that decision, initially by the NAA and then by the Administrative Appeals Tribunal.

The Commission’s draft recommendations endorsed the general principles of the present access regime, in particular the principle that once Commonwealth records reach the age of 30 years there should be a presumption that they are suitable for public release unless they fall within specific categories of exemption. However, the Commission’s draft recommendations contained a number of significant reforms intended to ensure that the present system operates more effectively and that the highest practicable level of access is provided to all Commonwealth records.

The draft recommendations paper suggested there should be a statutory right of access to all records, regardless of their age. This would extend the coverage of the FOI Act to eliminate the present ‘access gap’ for records created between 1968 and 1977. The Commission has not recommended that the access provisions of the FOI and Archives Acts be merged into a single piece of legislation, because this might result in needlessly restrictive policies being applied to older records.

There should be a statutory obligation on all Commonwealth agencies to make records accessible to the public at the earliest practicable time. Too often agency attitudes appear to be that records should not be considered for release unless they become subject to an FOI application and that, even then, exemptions should be claimed and charges imposed to the maximum extent possible.

The present 15 categories under which records may be exempted from public access should be reduced to nine. These categories relate to the protection of sensitive information in areas such as security, defence and international relations; information provided in confidence; law enforcement; the personal, professional or financial affairs of individuals or organisations; and material considered by Indigenous people to be secret or sacred.

* Dr Jim Stokes is the team leader responsible for the Commission’s review of the Archives Act.