25 years strong: reflections on the Archives Act 1983

Transcript

Anne Lyons: This evening we’re privileged to have a panel of distinguished speakers to reflect on this past 25 years and its implications for the future. First of all, we have the Honourable Barry Cohen, former Minister for Home Affairs and the Environment, who was responsible for the National Archives, and who delivered the second reading of the 1983 Bill in the House of Representatives.

We have Emeritus Professor Dennis Pearce, visiting Fellow at the Australian National University College of Law; Dr Michael McKernan, an historian who’s researched the collection for more than 25 years; and Dr Stephen Ellis, our Assistant Director-General at the National Archives and long-time staff member.

And it’s also my pleasure to introduce the chair of the panel, Professor John Williams, Associate Dean at the University of Adelaide and National Archives Advisory Council member. John will lead the panel discussion and introduce each speaker.

With such a wealth of information in our speakers, we will remind you when you have a minute to go, and when your ten minutes is up, to ensure people hear all of our speakers.

And we’ll also be recording tonight’s events, so we can podcast the speeches on our website, and also the questions and answers. So we ask, when we do have the questions and answers section at the end, that we’ll have a roving mike, and if we ask people to actually speak into the microphone.

Now, the order, as I’ve said. We will have Professor John Williams speaking first, on the background, followed by the Honourable Barry Cohen, and then Dr Michael McKernan, followed by Dr Stephen Ellis, and then Professor Dennis Pearce will round up the presentations.

So I’d like to now hand over to Professor John Williams, to start off proceedings. Thank you.

John Williams: I’ve just had that wonderful experience – my speech has been taken by the person who introduced me. Can I have my speech?

Anne Lyons: Oh! I told you it would be okay if you did speak clearly.

Audience member: What’s your memory like?

John Williams: That’s right. My time starts now!

Anne Lyons: Can I interrupt? I must admit that I did use the wrong name for George, as well. So I do apologise for that.

John Williams: Well thank you, ladies and gentlemen. I can see it’s going to be that sort of crowd!

Good afternoon. Thank you very much, and I acknowledge also the traditional owners of the land, the Ngunnawal people, and their forbearance for us here today. I’d also like to thank Anne and the Director-General for inviting me to speak on this important celebration of an Act.

I’d also like to thank you for your attendance here today, in the first of the series on legislative changes. Today, we’ve got an ‘Afternoon with the Archives Act’. Others in the series will include ‘Breakfast with the Bankruptcy Act’, ‘Lunch with the Lighthouse Act’, a ‘Soiree with the Superannuation Act’, which increasingly might be an importantly attended event.

I’m also struggling, however, to find where we’re going to put the Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act into our series, but I am sure we’ll find room.

Before I make what I think will be just a couple of points about the Archives Act and its historical context, I’d like to just say that as we know, it was in October of 1983 that the Bill had its second reading, and we have the reader here today.

It passed through the House of Reps on 2 October 1983, a year to remember. So, looking at 1983… [projects images on screen] Housing prices – the median housing price here in Canberra was $52,000. Grocery shopping, the Canberra way, looks like something beautifully out of a scene we know.

Now, this is my big memory of 1983 – big hair! Big hair seemed to be part of the story that I remember in Belconnen. Canberra, a holiday destination for the family, and don’t they look like they’re enjoying every moment of it!

Audience member: When do we go home?

John Williams: That’s right. Are we there yet? Have we left yet?

The first Hawke Ministry, and you can see some very young and dapper people in there – obviously, we pointed out one who makes regular appearance, but that brings back a few memories. Unfortunately, of course, some of them are not with us anymore.

Audience member: We’ve all put on some weight.

John Williams: Younger faces – that’s right. The High Court, and it would be remiss of me, as a constitutional lawyer, not to talk about the High Court case. The Franklin Dams case came down in 1983, delivered in Brisbane, as you remember – a case that recently had a celebration as well.

Dame Joan, and Pavarotti, in the Sydney Opera House… Was anyone there?

Member of Audience: Yes.

John Williams: Ah, fantastic! You may be invited to give a review at some stage.

Audience member: I won’t sing!

John Williams: No! Of course, we had visitors, and they look like they’ve come to Canberra too.

Have we left yet? ‘Thriller’ was thrilling us as the songs of our lives. It stormed the world, selling records. Flashdance, the film you could take anyone to once.

We had quality drama on the TV, ladies and gentlemen, 1983. Sons and Daughters, Young Doctors, A Country Practice. Quality, safe.

Australia won a Cup. I’m not sure if Alan Bond remembers, but we did.

Of course, our Prime Minister celebrated. Pat Cash. Nintendo had just hit our screens. In South Australia, we all had the Ash Wednesday, a moment of… a moment. The Challenger shuttle. McDonalds introduced us to those fabulous foods that have helped make our nation a lot larger.

And, of course, an Act was born, and that’s the important thing here today. So, that’s the context of what we’ve been up against. With the stroke of a pen, Sir Ninian Stephen gave overall assent to an Act.

So, what can you say about an Act? Well, it is and remains to be an Act that facilitated the work of a significant authority. Like many Acts of its time, it has aged, as that context I gave you showed. It would not be fair to say that the Archives Act is a beta videocassette in an iPod age. However, there are fair few features that have that feel about it.

Many of the practices of government in 1983 are no longer the case today. The incredible expansion and the complexity and the size of the Commonwealth activity means that the full capturing of records of a nation is difficult.

Datasets, platforms, protocols have changed. There is a need to keep up with the changing way that government does business, and that’s one of the things we should note in this celebration of this Act. So too, the size of ministerial staff have changed.

Robert Garran described life in the commencement of the Commonwealth department in 1901. He said, ‘For the first few days, I was both the head and the tail of my department, being my own clerk and messenger. My first duty, on 1 January 1901, was to write in longhand the first number of the Commonwealth’s Gazette. I then sent myself down to the government printer and had it printed.’

Robert Garran – I couldn’t find [it] in his book – also was at, as you remember, the signing of the Constitution and the commissioning in Centennial Park. He actually collected up the Constitution, the different Acts, and by his own account, put them in a bag and took them home.

He took the whole archives of Australia home with him.

Arguably, our first Director-General.

Gone are the days where there’s even a small ministerial office, let alone a small department. No one issue, I think, has bedevilled this Act more than: what is the meaning of a record, and a Commonwealth record? When is something created for, say, the Commonwealth, and when is it created for the private personal use of the Minister?

The definition of a record is itself complex. A record, as you can see, means a document including any written or printed material or object, including a sound recording, coded storage magnetic tape or disc, microform, photograph, film, map, plan, model, painting, or other pictorial or graphic work, that is or has been kept by reason of any informational matter, that it contains or can obtain from it, or by reason of its connection, with any event, person, circumstance or thing.

I hope that’s clear.

Now why does this matter? Well, it matters because of this man. Currently, the Vice President of the United States is being sued in the District Court of Columbia by the Citizens for Responsibility and Ethics in Washington – the CREW, as they describe themselves.

In essence, this is a dispute about whether or not the Presidential Records Act 1978 applies to the office of the Vice President. This notwithstanding, it says it does in the Act. The Vice President argues that he is not a member of the Executive, he’s not a member of the Legislature, his office is merely connected to the Congress, because he is the President of the Senate.

Why does this matter? Because the Vice President wants to destroy all his records. This matters because perhaps this is the underlying theme of any archive act, and for a public law – even more so – accountability.

The South African Constitution, and under Chapter Nine, lists a number of state institutions that it describes as ‘supporting Constitutional democracy’ – such bodies as the Public Prosecutor, the Human Rights Commission, the Auditor-General, and the Electoral Commissioner.

As the title suggests, these bodies strengthen the operation of their democracy. So too, I would argue, does the Archives Act. The Archives Act notes the importance that the Act plays in the history of the nation and its institutions, but what it perhaps needs to be more explicit about is the statement it also brings to accountability. The accountability that is in keeping for [the] future, the records of the past.

Currently, the VP wishes to destroy his records, and CREW are suing to stop him. I should say that the Presidential Records Act does also have a great definition – a workable definition – of what is a presidential record, and what is a personal record. Now, I won’t bore you about putting that up, but for those interested, I think it makes the distinction we could look at.

So too, I think it is time to revisit the issue of the 30-year rule, and the 50-year rule for Cabinet documents and Cabinet notebooks. It is interesting to contemplate a time in 1983, that when you needed to end a drought, you merely had to elect a new Prime Minister. The drought broke.

The Archives Act is worth celebrating. It’s a record of the past. It records the past, so that we can secure the future. Thank you very much.

So with that, I have the pleasure of introducing Barry.

John Williams: I’ll take off the Vice President so it doesn’t [inaudible]

Barry Cohen: I’ll see how I go. Can I have a bit more light there?

Barry Cohen: Bit more light? I’m not only a cripple, I’m blind. Thank you very much for that introduction. That’s the shortest I’ve ever had.

For me, to be introduced as an ‘expert’ (quote, unquote) on the National Archives is the ultimate test of truth in advertising.

I’m amongst experts, but it doesn’t rub off. I was a little apprehensive when I accepted this invitation, because I thought when you get to my age, you don’t talk about archives. You’re usually in one.

I confess that the second reading speech that I made on 18 October 1983 is not one that has occupied my mind over the intervening 25 years. And having reread it a couple of weeks ago, I’m not surprised.

I’m sorry that I did. What I would have delivered, in my usual Churchillian manner, it was not one of my finest efforts. It lacked my usual light, witty touch. I reread the speech a number of times, although after the first few lines, I realised it was not my handiwork, but had been written – if that’s the right word – by someone with an intimate knowledge of the institution.

It was no side slapper, even if delivered in my usual stentorian manner. I doubt whether it had any significant impact on those who heard it or read it. I suspect it emptied the House.

It was my practice, when a speech of mine was criticised for failing to fire the imagination, to place the blame on my principal Private Secretary, Sergio Sergi, who drafted my speeches. I’ve continued that practice even though we parted politically almost 25 years ago.

I brought him along tonight so that I have someone to blame. I’m also delighted to see in the audience another who contributed to my education, Professor Ian Hancock, the eminent historian and author. He guided me through African politics, which didn’t help in this speech one iota.

What can I tell those who are intimate with the workings of the National Archives that is new? Very little. I won’t attempt to. What I will do is recount some personal experiences regarding archives that had a profound effect upon me.

I can’t remember the exact date, but it was about one third or halfway through my term as, my four-and-a-half years as Minister. I was asked to open an exhibition of some of the designs for Canberra when the competition closed on 13 January 1913.

The competition was under the wing of my predecessor, also the Minister of Home Affairs, King O’Malley. I’ve always wondered whether this would lead to another smash musical hit called ‘The Legend of Barry Cohen.’

I fear not.

The exhibition was held in King’s Hall, and I can tell you how impressive and exciting and well, I can’t tell you how impressive and exciting it was. I’m not sure how many of the entries were on display, but I assume that as the National Archives holds only four of the entries, then they were the ones on display.

One of the entries was Burley Griffin’s, of course. Second and third places were awarded to Eliel Saarinen of Finland, and D Alfred Agache of France, while the fourth was an Australian entry by Griffiths, Coulter and Caswell. What fascinated me was not the Burley Griffin winning entry, which we’re all familiar with, but the other entries.

It was intriguing to imagine what Canberra would have been like if one of the entries other than Burley Griffin’s had won. One entry had zeppelins landing in what appeared to be Northbourne Avenue, or where it is now. It surely would have been easier finding a place – if that had happened – finding a place to park at Canberra Airport.

It was a brilliant exhibition made particularly interesting by having one of Burley Griffin’s family flown out from America to the exhibition.

The second experience I want to recall was in September 1985. The department told me that they were about to release the records of the Dunera, to which my response was, ‘And pray, what the hell is the Dunera?’

For those who are unfamiliar with the history here, and I’m sure this audience will not be, and haven’t seen the television special, The Dunera Boys, let me explain. Around 1940–41, all aliens in Britain were rounded up. The government gave an order to just arrest them. And overnight there was a knock on the door, you’re out. You’re in. They rounded up some thousands. And overwhelmingly they were Jews –Jews who had escaped from Europe and obviously were slightly different to the few handful of Nazis that they picked up.

They were in prison for some time, and suddenly they were told they were going on a ship voyage. And they didn’t know where they were going. They thought they were going to Canada, but in fact, they finished up in Australia, around 1940–41.

The treatment on the ship was disgraceful. But when they arrived here, they were sent to – one lot was sent to Hay, in New South Wales, and the other to Tatura, in Victoria. It was outrageous, and it was stupid that it happened, because the 90% Jewish prisoners, you could call them, wanted to fight Hitler, not fight on his side.

But, what happened is quite extraordinary. It was probably the greatest infusion of intellectual… intellect into this country in any one boatload. They were taken to Hay, and they were put in a prison camp. But what was extraordinary is that they were mostly – well, all of them – were professors, scientists, musicians, some of the top chefs of Europe.

Within a matter of weeks they had classes going, they had a symphony orchestra organised. You’d get the best meal in Australia in Hay.

They had classes going. It was an extraordinary place. And of course, the Australians treated them a lot better than the British soldiers had done, and they wandered around and they went into Hay, and the township became quite a celebrated place.

From that, some of Australia’s leading professors – Professor Heinz Arndt, I believe, Fred Gruen, Henry Mayer – I could go on. There’s a lot more that were amongst the ‘Dunera boys’. Why is this of interest to me? Why am I mentioning this?

Now, obviously, I’m Jewish. That’s no secret, and I was brought up in a country town, Griffith, which is the next town to Hay. And I was a small boy there, and in the whole town there were three Jewish families: the local doctor, the local dentist, which was my father, and the shoe shop. Sounds pretty familiar, doesn’t it?

And we, as a Jewish ‘community’ (quote, unquote), we gathered on high days and holy days, on Rosh Hashanah, on Yom Kippur, on Passover, and had our services in one home or the other. While this was happening, there’s a thousand Jews from the same places as we came from – from Poland, from Germany, from whatever – just down the road. And I never knew. I’d never heard of it.

And when I did hear of it, it was... I thought, ‘I can’t believe this!’ That this tiny little group of people was so close to over a thousand co–religionists was an extraordinary experience to find. But, suddenly, years down the track, I was the person releasing all the information, the records of the Dunera. It was quite an exciting experience, but also a strange one.

Now, let me tell you – this is not about Australian archives, this is about my personal experience, and why archives are important. I was, apart from being Minister for Arts Heritage and Environment or whatever, I was also the Minister responsible for the Bicentennial.

Again, it’s to do with my own background, so forgive me if I’m concentrating on this. I finished up... Well, as the Minister responsible for the Bicentennial, my job was to try to arrange the gifts that countries would give to us.

So, I’d met with the Polish Ambassador in my office, and I said, ‘Look, as a matter of interest, my family came from Poland, my father’s family.’ And he said, ‘Whereabouts?’ And I said, ‘Pajeczno.’ He said, ‘I don’t know where that is.’

And as luck would have it, a few days later I’m talking to, I’m at a family wedding, and I asked my uncle, and I said, ‘Where’s this place in Poland we come from?’ And he said, ‘Pajeczno.’ So, I said, ‘Where is it?’ He said, ‘I don’t know.’ So, I called over one of my cousins, second cousins, and he said the name was Kozerwoder, not Cohen. So, I could have been known as the Member from Robertson, Barry Goatspiss! But I wasn’t. And thank God. I don’t think I’d have got elected.

So, he came over, and he said – this cousin of mine had been in Auschwitz – and he said, ‘Look, this is how you spell it, and this is where it is, and near Czestochowa, not far from Lodz.’ So the next week I saw the Polish Ambassador again, and I said, ‘This is where we come from.’

And he says, ‘Ah! Pajeczno.’ I said, ‘Why do you pronounce it that way?’ He said, ‘That’s the Polish pronunciation. You’re pronouncing it the Yiddish way.’

Anyhow, time passed, and I was about to retire from parliament in 1989, and I thought, the last thing I want to do – I’ll go to Poland. I want to trace the roots of my family.

[Bell rings]

Barry Cohen: Can I go on for a few minutes?

John Williams: Yes.

Barry Cohen: OK. Sorry. You were going to give me a warning!

John Williams: I just did!

Barry Cohen: I’ll fit the clock on you, too... [inaudible] Anyhow… Well, now I’m lost…

John Williams: Tracing the roots of your family…

Barry Cohen: That’s right. And I said, before I retired, I’d like to go to Poland, and go to the village where my family lived, and walk down the same streets that my grandfather and grandmother, Moishe and Zelda Kozerwoder had walked.

So, I wrote, I contacted Foreign Affairs, they contacted the Australian Embassy, they contacted the Polish authorities… They came back, and I said, ‘Look, I want to know if there are any cemeteries I can visit.’

They said, ‘There’s no cemeteries left. When the Germans came through here, they took the Jewish cemeteries and they destroyed it and used the rocks and whatever for road building, in their usual sensitive way.’

But I said, ‘There are some records in the local archives.’ So, to cut a long story short, so the last thing I did was to go to Canada, leading a delegation of southern parliamentarians. Then, we went on with my wife, Rae, who’s here with me tonight, to Warsaw. And the Polish government were wonderful. They gave me all the hospitality that they could.

They provided me with a driver and a car, and an interpreter. We went to Pajeczno, or Pajcczno. And when we arrived, the mayor was there to greet us. There’s a photograph of myself, with my wife, rather, and the mayor of Pajeczno, a village now of about three and a half thousand people.

And they were lovely. They gave us chocolates and biscuits and coffee, and after a while, he said, ‘Look, your family were very well known here. Very respected.’ I’d never heard my family referred to, other than within the family itself.

And he said, ‘What happened here is in 1940, when the Germans arrived, they took all the Jews from the village of Dzialoszyn – which is your grandmother’s village, ten kilometres away – they took the 500 Jews out and they shot them. In Pajeczno, they kept them in Kosciuszko Street, they kept them locked in there for about two years, and then the trucks came to take them away to Chelmno and Auschwitz, where 95% of them were killed.’

I said, ‘Look, can we go around to the little archives and have a look?’ And he said, ‘Certainly, they’re finished. They’ve been doing a wedding there and they’re finished now.’ Round we went, upstairs, a little, tiny brick… Not as grand as this, I can tell you! A little tiny… like a Paddington unit.

We went upstairs, and the mayor was with me, and he came out, and the guy came out and said, ‘What can I do?’ He said, ‘Why, this gentleman’s come from Australia. He would like to look at the records.’

And so he said, ‘When do you want to start?’ I said, ‘When do you start?’ He said, ‘1887. Let’s start there.’ So he brought them out, and I opened the first – like a little, brown exercise book, at a school. I opened it up, and it starts off – and by the way, I’ve got an interpreter here – it’s in classical Russian, which I hadn’t mastered at the time.

And he translated. I mean, it was a short story. And I brought the photo. That’s what each entry was like. I mean, I’m sure you can’t read classical Russian from there. And it said, ‘On 14 September 1887, Itzek Meyer Kozerwoder came to the registry office to register the birth of his son, Shmuel Kozerwoder,’ etc.

And God, well, the hair on the back of my neck stood on end. Rae was in tears, and it was... [crying] Sorry. It was a very emotional experience. So I said, ‘Can I photograph these?’ And he said, ‘That’s not possible.’

And I said, ‘Look...’ The guy said, ‘He’s come ten, twelve thousand kilometres. Let him take the photographs.’ So I did, and there’s the result of them.

Anyhow, I came back and I had them translated here at ANU. And then we sent those – that translated English, which I’ve also got here – I sent them to every member of the family that had survived throughout the world. And a few months after that, we had a reunion of all the family.

They came from Africa, South Africa, they came from America. And of course, 150 people turned up at the hotel, and it was a fantastic experience. And I just want you to understand how important archives are. Thank you.

John Williams: Thank you, Barry, for that very touching and moving discussion of the archives. It puts another context of what archives mean to us all. I’ve sort of given a bit of an institutional story, but I think you… One of the great things about walking around the archives, and when we visit them, we usually pull out a record, and it’s an immigration record, inevitably, and then you see a photograph of people’s lives.

Archives, in many ways, we sometimes feel that they capture hope. That’s what I like about those sort of records. They capture hope. You know, there’s sadness there, but you see these photos of these families who have... what time they were dragged off and taken a photo of. But, obviously, there’s something there.

I’d now like to introduce our next speaker if I could, Michael McKernan, who is a historian and who’s been telling us wonderful things about Jugiong while we were waiting for this, so in the quieter bits, we might hear something about that as well. Thank you very much.

Michael McKernan: Thank you, John, and thank you to the Archives for inviting me to speak, and bugger to the Archives for putting me on after Barry Cohen.

I could just stand here for ten minutes and you could all think, and then I could sit down again! And that would be a much better way of doing it, but no, that’s not what I’m going to do, I suppose.

I arrived at the doors of the Commonwealth Archives Office as a researcher for the first time in the year 1972. The office was housed in buildings close to this one, but closer to the lake, where the National Gallery is now, or thereabouts.

The first step in gaining access to the collection was an interview with a member of staff. I don’t think the point of the interview was to issue a reader’s ticket, as would now be done, but rather to assist the member of staff to identify records that might be relevant.

‘Tell me about your research project,’ the staff member began. ‘But first of all, are you writing an MA thesis, or a doctoral thesis?’ I confirmed that I was, indeed, a PhD student at the ANU. ‘Ah, good,’ the staff member continued, ‘We tend to warn off the MA students, as theirs is only a two-year degree, and we may not be able to provide access to the records in time for its completion. But, with three years in your degree, we should be able to help.’

Perhaps Prime Minister Whitlam had heard of such student experiences, because shortly after coming to office at the end of 1972, he commissioned the Canadian archivist William K Lamb to look at what was needed in Australia to secure the Commonwealth’s records, and to make them available for researchers.

Dr Lamb consulted widely among the archive staff, I’m sure, the wider archival profession, and with researchers. I was one of those invited to give him my views in an open forum for invited users. The forum was held, if my memory is correct, in the conference room at the National Library. I don’t think it could have been held at the Archives, for there simply wasn’t the space.

In Canberra, the office by the lake consisted of a couple of Nissen huts. A Nissen hut is a lightweight, prefabricated structure of corrugated iron having a semicircular cross–section. It is not a thing of beauty, and it is certainly not a thing of comfort.

There were, apparently – because I’ve researched this – there were apparently between 150,000 and 170,000 of these wretched things manufactured by the United States during the Second World War. Two or three of them lobbed up in Canberra as the home of the Commonwealth Archives Office. They were dreadful. Cold in winter, hot in summer, and dusty.

The lake had been excavated close by, and much of the dust from the construction of the lake became attached to archives files. If you worked for even part of a day among the records at the Commonwealth Archives Office, you would definitely need a shower on the return home.

I also worked on defence records at the Archives Office in Melbourne, or more correctly, Middle Brighton. Pleasingly, the office there was in easy walking distance of the Marine Hotel, to which researchers would often retreat at lunchtime. Staff too, possibly. That the Archives Office was housed in a former dry cleaning factory, added in no sense at all to its charms.

I took the view that in preparing his report, Dr Lamb would have reflected on the housing for the archives himself, perhaps in some astonishment, coming from Canada, where the archives were in a very flourishing condition. I wanted to raise with him a more pressing problem.

‘How is it,’ I asked, ‘that members of staff of the same institution, but in two different cities, no doubt subject to the same regulations and management and directions, seem to interpret their responsibilities in different ways? The staff in Melbourne could not be more helpful,’ I reported, ‘but in Canberra, it is often very difficult indeed to obtain the records that one sought.’

In open forum, before senior Archives staff in Canberra, this was possibly a foolish observation to make, and it is possible that the delays in obtaining files extended, rather than contracted, because of my stupidity. But, I wish to remind you how genuinely difficult it was to work with an organisation that seemed to give very low priority indeed to public access.

I was studying the response of the Australian Christian churches to the First World War. One area of particular interest was the role of the chaplains with the Australian troops abroad.

Defence records were crucial. The researcher could sift through the finding aids, such as they were, and list files by title that might seem of interest. Everything then had to be access examined for clearance before the files could be handed to a researcher. And this could take a very long time.

One of my interests was Melbourne’s Catholic Archbishop, Daniel Mannix. And there were very interesting file times for titles referring to him and his activities in the Archives. Most of the files seemed to be in Melbourne, so I was more confident that I might get access to them than if they had been in Canberra.

I dutifully applied for the files. And for an overwhelming number of them, I received the infuriating information in return: ‘not received in Archives’ (end quote).

‘How could these files be listed in the finding aids?’ I railed in frustration. ‘But never make it into the custody of the Archives?’

I still do not know. I envisaged a loyal member of Mannix’s flock in Melbourne, perhaps in a lowly position at the Archives, flinging these files into a rubbish bin. ‘Sure, but it would be a terrible thing for the memory of his Grace, if we allowed these wretched files to be seen by people like McKernan!’

Access to the records, timely access to the records, was the single most important matter in contention between researchers and the Archives. I am sure that Dr Lamb received that message loud and clear. It was crucially important that access provisions had the weight of law, that there were timeframes within that provision, and that there were appeal procedures in relation to Archive staff decision-making.

The Act that we are celebrating this evening achieved those things. It was a revolution for Australian archival researchers. Though researchers, on the whole, are a single-minded and selfish lot, interested only in what will advance their own understandings. Even so, there was a second way in which the Act enormously assisted researchers.

In giving the Archives legislative power over Commonwealth records, the Act established the power of custody. Previously, the Archives received what departments deemed it might have.

Perhaps, genuinely, a departmental officer somewhere did think that the correspondence from, to and about Daniel Mannix would not be of interest to anybody studying the story of Australia in the First World War. If so, that was a hopelessly flawed understanding of what makes history. Trained professional archivists would have been alert to these issues. The Act enormously empowered their decision-making regarding the custody of records.

If I might give you one small example from the same field in which I was working. Mannix was out of step with most of his fellow Catholic bishops and archbishops, especially in 1916, in opposing the introduction of conscription in Australia. Bishops are wily creatures, very reluctant, ever, to let their decisions and deliberations into the public gaze. So we knew very little, if anything at all about this disharmony.

Prime Minister Hughes wanted Mannix disciplined and silenced by his church. Hughes had got nowhere trying to do it himself. The Prime Minister received copies of correspondence between the Vatican’s Secretary of State and the British government’s representative in the Vatican about Mannix.

The correspondence makes it clear that the Apostolic Delegate in Australia had sought to restrain Mannix, that he had convened a meeting of Australian archbishops and bishops at which Mannix received a strong rebuke. And that the Vatican was unhappy with its Melbourne representative.

This vastly enriches the story of Mannix and the war in Australia. We would have known none of it without the retention of the records of this correspondence in the Archives. Of course, these records would also be in the Vatican archives, but the closed period at the Vatican is in the hundreds of years, whereas the closed period here is in the dozens of years.

The file here is in the Governor-General’s correspondence files, 1917–27, entitled ‘Apostolic Delegate from Rome’. This doesn’t give you much of a hint of what it might be about, but I was so frustrated with the Archives that I even applied for that one.

It was a godsend to me and my thesis, allowing me to say something genuinely new and fresh about Mannix and conscription. It was remarkable that this file survived when so many others had been lost.

The Archives Act meant that these files could not be lost again. The Archives was, at last, the master of its own destiny. This enormously increased the self-confidence of the National Archives that the Act had created, gave substantial and appropriate power over its custody of Commonwealth records, and gave researchers confidence in the operations of the Archives and their transparency.

I thank Mr Whitlam and Dr Lamb for getting the ball rolling and those who came after them for implementing that initial reform. And I apologise to those overworked dusty denizens of the Nissen huts in Canberra and the dry-cleaning factory in Melbourne for not then understanding the appalling circumstances of their working lives.

Thank you.

John Williams: Thank you very much. If I knew the chair of the Advisory Council, Paul Santamaria was here today, he might say that it was a miracle that those files were truly well held.

OK, our next speaker is Dr Stephen Ellis. Stephen is an Assistant Deputy Director, and he will be progressing this story about the Archives Act.

Thank you, Stephen.

Stephen Ellis: Well, the ‘acts’ are not getting any easier to follow are they?

I would like to... Here begins the boring part of the session. I’d like to make a few observations of my own experience in the Archives, particularly at the time of the passage of the Act, and to comment upon a few of the features about it.

There are three essential points I wanted to make about the Act. So, in case you fall asleep before I get to the end, I ‘ll make them to begin with.

First of all, I want to emphasise that the nature of the Archives Act in 1983 is, as has been suggested by our two preceding speakers, actually quite a watershed. It’s a different type of archives legislation than had been customary in the world and, certainly, in the British Empire up to that point – in that it established a legislative framework that defined how the machinery of government was expected to work in relation to records.

The second point I wanted to make is that, although the Act established that framework, it didn’t solve all of the issues that are attendant upon that task. But it certainly provided a sound basis for good administration from that point onwards.

And my third point is that it established, as Michael has just eloquently demonstrated to us, a worthy and workable arrangement for access to public records.

For each of those three reasons, I think it is actually a piece of legislation that is worthy of celebrating. So I will return to my own take on my own experience in the Act.

Most of you in this audience will be aware that the matter of archives has been a recurrent topic in the history of Australian government, from the later decades of the 19th century into the early years of the 20th century, when significant efforts were made to track down and to print the historical records of the Australian colonies. Of course, most of those were not in Australia. They were in the heart of the Empire.

However, during the bulk of the 20th century, from a legislative point of view, there was a lot more talk about archives than there was action. Even when the institution that was to become the National Archives was established in 1944, it was on the basis of a decision of Cabinet, and the administrative character of those arrangements remained its basis for many decades thereafter, as we know up until 1983.

That this was unsatisfactory in many aspects came particularly to public notice when changes in the United Kingdom led to an awareness in Australia that we were being left behind in such developments, because it was in fact in the heart of the Empire that the 30-year rule changes first began.

And this finally gave rise to a famous, quite then famous, strike of notable Australian historians from the then very redoubtable History Department at Melbourne University, in which they publicly declared that they would no longer undertake research in Commonwealth history, owing to the disgraceful arrangements for public access to the records of the Commonwealth government.

The government obviously trembled at this prospect.

At about this time, in the later 1960s, when I myself was just beginning my own postgraduate studies, Sir Peter Heydon, who was then Permanent Secretary of the Immigration Department, came to visit the History Department of my university.

Melbourne University Press had not long before published his study of Sir George Foster Pearce titled Quiet Decision. Sir George Pearce had of course been the Australian Defence Minister for a very substantial portion of the first half of the 20th century. And Sir Peter had, for a time, been his Private Secretary.

In talking with the History Department staff, Sir Peter commented on how difficult it had been for him to acquire the sources for his study of Sir George, even though its subject had been such an eminent Minister of the Commonwealth for almost half of the 20th century.

As my own studies were based on the written works of Dr CEW Bean, who as you know was chair of the War Archives Committee, I contributed the view to this seminar that such difficulties were surely now long past. And I referred to Bean’s article in the Journal of Historical Studies in which he had explained the archival system that had been set up in the 1940s by the War Archives Committee under his chairmanship.

Sir Peter Hayden’s response to my intervention was to burst out laughing and to comment that, ‘Just because there’s a system, it doesn’t mean it bloody well works!’

Needless to say, as a youthful and serious postgraduate researcher I was less than impressed by Sir Peter’s response to my display of erudition, and I confess not a little offended at his unseemly levity.

A few years later, when I participated in a Department of Foreign Affairs recruitment round, another knight – Sir Keith Waller – warned my small group of very sharp and keen applicants that the crafting of government correspondence and documentation was a very high calling, and one which required most careful consideration. Because at any point such documentation, as a matter of course, would be taken to be a pronouncement of the Australian Government. Although of course, at the time, he didn’t use the phrase ‘Australian Government.’

So, when I came to join the Australian Archives in the second half of 1983, I had in a manner of speaking fallen on hard times, and knights of the realm no longer proffered me their advice.

In applying for the position with the Archives I had uncharacteristically had the foresight to read the operations in the department’s annual report. But I recall now that I did not have any special awareness of the proposed archives legislation which was then being considered in Parliament.

It’s quite interesting as an aside to think back to those times. Nowadays you could actually go onto the website of Parliament, find out what was in the impending legislation, and actually see the entire text of the legislation. But in those days you would have had to troll through metres and metres of Hansard reports and find out that sort of information, which would have been very difficult.

So although I did have the wit to consult the annual report in preparation for my interview, I was probably very lucky that I did not consult the legislation, for I would have found that it did not have the structure or the character of the Public Record Acts with which I had more familiarity as a researcher.

And this is my initial point. One of the points that I think is worth noting on this occasion of the 25th anniversary of the Act is that it was in its day quite a departure from previous tradition in such matters, particularly in that it attempted to provide for a comprehensive management regime for the records of the Commonwealth.

It borrowed so much of the then recent and innovative thinking about administrative law for which the British traditions – both of administration and of legal practice – had not provided particularly effective mechanisms up to that time, in marked contrast to those of the civil law traditions of what was still known then as the Continent, meaning of course Europe.

Since the 1980s, the work of various commissions of inquiry in the state jurisdictions and in that other state, New Zealand, have produced comparable changes in the character of the public records legislation throughout Australia.

And so, in retrospect, we can now see that the 1980s was the beginning of a period of very active re-drafting and re-conceptualising of the nature of archival legislation, particularly in our part of the world. So it was with a relatively uninformed but open state of mind that I joined the Archives in 1983.

I recall the frisson of excitement that swept through the office when the word came in early October that the long awaited Bill had passed through the Senate and was to receive the Royal Assent. I also recall that there was some consternation over the fact that the legislation was not to come into force until proclaimed by the Governor-General in the following year.

This delay was designed to provide a breathing space in which necessary arrangements could be made both within the Archives and in agencies to implement the legislation.

[Bell rings]

It presaged for those of us in the policy area of the Archives a very intense period of preparation of associated regulations under the legislation. I would like to take just a moment to read you one of those regulations, because I helped to draft it.

Which is not its only virtue. It was a very educational period for me. Many of you would know, dealing with legislative draftsmen is always a very educational experience, because you find phrases like ‘necessary and convenient’ don’t actually mean necessary and convenient. And phrases like ‘notwithstanding the above’ can mean anything.

However, this regulation, Number 4, I think is a masterpiece. It’s titled ‘Notice in Relation to Dealings with Records’, subsection (1), where: a) permission of the Archives is given to a person in respect of any dealings with Commonwealth records; b) A practice or procedure is approved by Archives in relation to any dealings with Commonwealth records; or c) the Archives notifies a department or authority of the Commonwealth that it disapproves of a practice of the department or authority in relation to dealings with Commonwealth records. Such permission, approval, or disapproval, as the case may be, shall be given by Archives by notice in writing, being a notice that complies with subregulation (2).’

It’s on the web!

‘A notice referred to in subregulation (1) shall: a) be signed by the Director General or an authorised person or b) specify the date on which the notice is signed, or c) specify the matter to which permission, approval, or disapproval relates, as the case may be; and d) specify the name and address of the person to whom the notice has been given.

Subregulation (3) in this regulation: a reference to an authorised person shall be read as a reference to a person authorised in writing by the Director-General to be an authorised person for the purposes of this regulation.’

At this moment, I cannot for the life of me imagine why we made that regulation. But obviously we convinced the Minister. Because he did so.

Having said that, quite seriously, come back to the important point of the presentation. The Archives Act did actually provide a very comprehensive framework for the management of government records.

And it provided a very sound foundation for the Archives to build up all of the subsequent administrative arrangements and practical arrangements that had to be worked out with government agencies, to make the sort of public access arrangements that Michael has referred to, and that produced the benefits and the impressions that Barry has referred to.

So, importantly, for all of our nation, it has provided a very sound basis for that sort of work, and there’s no question, I think, that we’re better with it than without it. Thank you.

John Williams: Thank you very much, Stephen. Stephen is available to sign copies of Regulation 4 after the event.

I’d now like to introduce someone who actually understands what Regulation 4 means, and that’s Emeritus Professor Dennis Pearce. Please, come to the [inaudible]

Dennis Pearce: Thank you, John. No, I didn’t draft Regulation 4, but it seemed to be a perfectly reasonable regulation to me, and anybody who wanted to do something like that should get authorised. Mustn’t knock these things.

Ladies and gentlemen, I wanted to say what my brief is. It’s to reflect on the Archives Act as a key part of the administrative law reform, and then to ask what changes, if any, the Act needs after 25 years of operation.

And my time ran out about a half an hour ago.

So, I’ll talk very quickly. I wanted, first of all, to quote the speech that Barry Cohen has now disowned, and so I’ll quote Sergio Sergi’s Second Reading speech, in which I think he very nicely does encapsulate what the Archives Act was intended to do.

And he refers to it as, ‘It’s to do with the relationship between the community and the bureaucracy, or to acknowledge that the relationship between the community and the bureaucracy is undergoing great change. Public rights and expectations are increasing as concepts of openness, privacy, and redress at law permeate public administration.’

‘In this new environment,’ it says, ‘a growing proportion of Commonwealth records will be potentially of direct and immediate interest to the public, and the government expects the Australian Archives to play a significant part in helping both the service to adjust to the demands of this new environment, and the public to make reasonable and informed use of their changing position.’

I think it’s a brilliant piece of writing, myself.

And Barry should have claimed it as his own, even though he might be able to make a great joke out of it. One of the ways, then, I think that one should see the Archives Act is as part of this notion of we set out to set up a whole new approach to letting other people know what government was doing and being able to call government to account.

And that occurred through the ‘70s and the ‘80s. The administrative law package, most of you would know, was developed during the 1970s and established the Administrative Appeals Tribunal, the Ombudsman, and the right to seek review of government decisions by the Federal Court.

A little later, along came the Freedom of Information Act, and then the Archives Act as an adjunct to it. And as previous speakers have said, the significant point about freedom of information and archives was to require accountability and to provide means of access.

It’s often forgotten that up until those changes were made in the ‘70s and ‘80s, you couldn’t ask government to give you any reasons for the decisions they had made, and you could not get access to the documents that the government had relied upon to make that decision.

So this was a dramatic change that occurred, and the Archives Act was an essential part of it. Now, in trying to assess whether it’s been valuable, whether it’s served its purpose, I think it’s useful to think – as a performance indicator, in the best modern jargon – to ask the question, ‘Well, have the decisions under the Archives Act been challenged?’

And it’s interesting to compare the position with the Freedom of Information Act. Most people nowadays regard freedom of information as being something that’s not quite doing its job, and there’s a general ferment around the place to make changes to it, which is a very good thing.

But there are hundreds of decisions of the combined Federal Court, and the Administrative Appeals Tribunal, and the Ombudsman relating to rejected Freedom of Information applications. There are no court decisions on the Archives Act. There are 12 AAT decisions that deal with questions of access.

And they all relate to security documents. It’s quite interesting to see the outcomes: in six of those twelve, no change was ordered by the Administrative Appeals Tribunal. In the other six, there were minor changes.

There are some lovely applicants there. The names of the applicants will ring bells. Aarons, Throssell, Langer, Milliss, they’re there, the group of people who challenged those Archives Act decisions. Now, if you draw from that the question, ‘Is the Act working?’, then I think the answer you must get is an overwhelming yes.

I mean, that’s been borne out by our previous speakers. But, if you put it in a legal context and say, ‘Are the archivists... Is the archives office meeting the expectations of the public in providing means of access?’ then I think that you reach a conclusion that yes, they are.

Well, that’s the first part of the issue, and you’ll see I’m going rather rapidly. The second part is: should there be changes? The interest, I think, here is that we’ve had a picture pretty much this evening which says this is a wonderful Act, and things are going very nicely.

And that’s right as far as it goes, but like most 25-year-olds, they think they know everything, but there is room for change with a little dwelling on maturity as it approaches.

[inaudible comment]

Dennis Pearce: No, that’s only the author that looks older than 25! Only just though, only just!

Now, the Act was reviewed by the Australian Law Reform Commission in 1998 and showed that they didn’t regard it as a perfect Act. They made 223 recommendations for change. Not very many of them have been carried through, but some have.

And I think what’s likely to have the most effect on the operation of the Archives Act is this ferment to change the Freedom of Information Act, because they do go hand in hand. And the pressure that’s now on, and which the Minister has acknowledged, or the government has acknowledged, is to limit the exemptions that are there and remodel them so that they’re a bit more realistic and perhaps more importantly, to abolish the issue of conclusive certificates.

The Freedom of Information Act in Queensland has just recently been the subject of an extensive review by David Solomon, a name with which many of you would be familiar. And I wanted just to bring to your attention a couple of the recommendations, because I think they’re pertinent to any notion of reviewing the Archives Act.

His recommendation number one, which is a good way to start, is: ‘As a priority, the Queensland government should develop a whole of government strategic information policy, that posits government information as a core strategic asset in the smart state’ – that’s pretty good stuff, isn’t it? – ‘in the smart state vision, addressing the life cycle of government information and interconnecting strategically with other relevant public policies.’

That’s a very nice statement of what the whole question of access to information should be trying to achieve, and the Archives Act is of course part of that.

And his second recommendation is that the Queensland government, until it recast the FOI Act, should move the existing ‘pull’ model to a ‘push’ model, where government routinely and proactively releases government information without the need to make an FOI request.

That’s of course very valuable for FOI, but it’s exactly what Archives does. So, it’s useful to think that the Archives has achieved that second recommendation of the Solomon Report [The Right to Information].

Now, there seem to me to be two really significant management structural changes to the way in which government functions since the Archives Act was passed in 1983. And this does impinge on the way in which the Archives Act currently functions and should function in the future.

The couple of things that I want to point you to all turn on the really curious definition of Commonwealth record that exists in the Act now. Not just record. John showed you that laborious and comprehensive definition which I think deserves more pillorying than poor old Regulation 4.

But the Act then goes further and talks about a Commonwealth record. So, it picks up that definition of record and then adds Commonwealth to it, then defines it quite simply as a record that is the property of the Commonwealth. And it’s that building into the Act of the concept of property that I think bedevils the Archives Act.

Because what is the property of the Commonwealth? It’s an unfortunate legal concept that now has got the Act like that. And it needs, I think, a further venture. And the two areas I wanted to mention where it applies are these. First of all, in relation to outsourcing. Governments no longer do everything. In 1983, government did everything.

But it changed its pattern through the ‘80s to a process whereby it paid others to work for it and to do the job that had been a government job. And it gave money to organisations to do work that previously had been government work.

And so, the records that had been derived by those sorts of bodies, the Commonwealth has no claim of property over them. And yet they are part and parcel of the whole management of the Commonwealth function. And yet those records are not available in the Archives.

David Solomon, in his report, did have a go at this. He said that as far as FOI was concerned, because the same problem lies there… He recommended that where a private organisation contracts to perform functions that were once performed by government – were once performed by government – and all are considered generally to be the responsibility of government to deliver to the public, FOI should extend to cover those documents. What a little ripper: are considered generally to be the responsibility of government to deliver to the public.

When I was Commonwealth Ombudsman, I had an enormous brawl with John Stone – an easy man to brawl with – who said, ‘What’s the position in regard to electricity? Is that necessarily a government function? What about the provision of transport? Is that a government function?’ Because I was wanting to review all these decisions as Ombudsman.

And that’s what this issue gives rise to. But if you don’t go down that pathway you do leave this big gap in the totality of Commonwealth records.

And the other one that I think that’s happened that raises interesting questions is in regard to staff appointed by members of parliament, or by Ministers, under the so- called MOPS Act, the Members of Parliament Staff Act. That is an Act that was passed after the Archives Act was passed, and there’s no reference to these sorts of people in the Act at all.

And yet they generate and have within their possession a lot of interesting records. All the records that Ministers are concerned with pass through them, a lot of government, a lot of departmental-type records would pass through their hands.

[Bell rings]

Dennis Pearce: I’ll be only one moment.

The point about the members of parliament people is that they are appointed by the Commonwealth, so they’re on the Commonwealth payroll, but they’re not public servants. So, does the Commonwealth have the right to the property in the records that they generate (question mark)? I don’t know the answer to it.

Now, I think, it’s appropriate that there be congratulations to the Archives Act, to the Minister who introduced it and caused it to be published, and 25 years on, it’s doing a remarkable job. But …

[inaudible comment]

Oh, yes he did. Yes he did. Don’t kid me.

And it’s time for it to mature a little, but it’s certainly got the makings of a wonderful future. Thank you.

John Williams: Thank you very much. That brings us to the question and answer, the sort of Tony Jones moment in our event. We’ll probably only be 5–10 minutes, so we’ll have some questions if we have, and we have…

Audience member: We’ve got daylight savings.

John Williams: We’ve got daylight savings, and they say it’s always half an hour earlier in South Australia. So, as everyone gets into their position, are there any questions from the floor?

[inaudible comment]

John Williams: Well, that was worth it. Thank you. Just one moment ‘til you get the mike.

Audience member: With the advent of the computers and the proliferation of masses of information, it seems to me that – this is possibly not a question but perhaps a statement – it seems to me that with this generation of this proliferation of information, Ministers and their advisors and their departments are really the meat in the sandwich. Because usually people expect responses very, very quickly.

But, to get to the point of the question, with the advent of computers and the ability to delete material from them, has the Archives looked into that issue?

John Williams: I’m looking at Stephen there quietly…

Stephen Ellis: Yes. Yes, we have. There’s quite a large body of work that has been done in this particular area. We provide a lot of advice directly to government agencies about those process and how they should be managed. And we’ve also invested a lot of effort over the last 10 years in researching how we would actually preserve those electronic records when we get them into the Archives.

However I’m always mindful of Sir Peter Hayden’s advice to me that just because there’s a system, doesn’t mean to say it works well. But, we have actually been paying a lot of attention to those particular issues. And a lot of government agencies have been investing a lot of money in trying to address those issues, as you probably would be aware too.

John Williams: There’s a question down the back.

Audience member: Linked to that, it seems to me that many public servants these days, particularly the younger generation, have never been taught about filing records or the importance of keeping records, and simply don’t do it. What can be done to make sure that the records simply don’t disappear right at the beginning?

Audience member: Steal their computers!

Stephen Ellis: Steal their computers. Or cut their fingers off? Would that...

Yeah, there is quite contradictory evidence about a lot of this. I think that it’s quite interesting, when we examine the volume of paper that has been flowing into the Archives over the last 100 years, that represents the last 100 years of Commonwealth production of records – the actual physical volume of paper produced by the Commonwealth has increased every year since the 1970s at a faster rate than it did in the 1940s, for example, when the Commonwealth’s functions expanded very rapidly.

So I think that there are particular problems, but there is still an enormous quantity of documentation occurring. Along with the electronic systems which make it a lot easier to delete records or to lose them or to misplace them, there are also a lot of other systems which actually make it quite possible to duplicate those records through a whole raft of systems.

You know yourself how easy it is to simply include another 12 people in the ‘cc’ address of an email. And when you think that’s happening in every Commonwealth office, the volume of traffic is quite enormous. There are major problems about that. And, as I have said, we do have people in the Archives who are working very assiduously and also in organisations like the Public Service Commission to try and ensure that agencies can deal with that.

At the end of the day, the major reason why people keep records is because they want to use them for their own business purposes in doing their job. That’s why they will keep them. They won’t keep them because an historian wants to see them to finish his PhD.

John Williams: Dennis, you’ve chased a lot of paper in your time. What is the general standard as an Ombudsman?

Dennis Pearce: Yeah. In my time, which is way back now, at the beginning of 1990, we didn’t have a lot of problem with absences, as it were, of records. But I think it’s a growing issue, and the capacity has to be put in place – and Stephen will obviously have the facility for covering this – for picking up the material that has in turn been filed and remains in the computers.

I don’t know how you get it from computer to hard copy form, except by moving more and more towards holding your records, or the Archives holding the records online themselves. But, as to the question that John is asking, ‘Is the quality going down?’, I don’t know. It has probably not always been terribly good.

That is what it comes down to. I have seen some really awful files, and I have seen stuff on files that just ought not to have been there. I remember one search and coming to review for an organisation in which the Minister’s determination was the crucial legal document. And there it was! Bang in the middle of a huge file, duly spiked and folio numbered and completely invisible. It was only by pure chance that we could ever find it again. That was back in ‘93.

John Williams: Any questions? Yes, this one here.

Audience member: What’s been related tonight in part is the story of increasing access to government records, starting with Michael’s experience. Now that we can see things online and so on, and there are great public expectations of transparency and access to government records. Is the 30-year rule still relevant? Should it be changed?

John Williams: Michael!

Michael McKernan: Oh! I don’t know why I have been thrown that one. Of course, historians would want no limit; if it was created yesterday, can we have it today, please?

That’s simply impossible. One of the great joys, I think, with the release of records at the 30-year mark is that, increasingly, I am able to say, ‘Oh, yes. I remember that.’

Just to talk on file titles, and totally irrelevantly, I once wrote a history of the Australian War Memorial. And my favourite file title in its registry was ‘Australian War Memorial, Irrelevant and Unwanted Matters’. Probably that file had no reason to continue to exist.

It seems to me that 30 years is too long now, in terms of the way that history has changed.

If I come at it from an historian’s point of view, the way that history is done has changed dramatically. If you think back when I was doing my PhD, a lot of history was quite administratively based and quite heavily written out of a limited and narrow range of records. And archival records fell very firmly into those categories. But, history now is much more fluidly written and more, if you like, ‘newsy’ in its approach. I think most people would say that 30 years is far too long now for that.

Ten seems to me probably to be about right, given that we seem to change governments in this country on about a ten-year basis. And so, with the records of one government, you could start looking at when they’ve gone and a new government has come in. That sort of thing…

Barry Cohen: That’s your view…

Michael McKernan: That’s my view, of course.

John Williams: Minister, do you…

Barry Cohen: I don’t know but politicians would prefer the 300-year rule. Never to be released…

John Williams: Minister, do you have a view apart from the 300-year rule?

Barry Cohen: Sorry?

John Williams: Minister, do you have view apart from the 300-year rule? Would you…

Barry Cohen: Well, yes, I would say longer if I lived that long, anyway. No, I don’t.

John Williams: No? Thank you.

Dennis Pearce: If I could have a quick word on that? I think that much of that depends on how FOI is dealt with.

If you go down this pathway that David Solomon was talking about, a push, rather than a pull, exercise towards FOI, then the length of time doesn’t become quite as significant. Because, theoretically, you would have to get it out under FOI. And that is simply an alternative to archives.

But if we keep on going down the pathway, with FOI being regarded as a means almost of blocking access to information, then the shorter that turnaround period can be the better.

Barry Cohen: Quite seriously… It depends on what the information is. The question is, since one should, I would imagine that they have some sort of records...

John Williams: We’re good for the pod…

Barry Cohen: I’m sorry…

John Williams: We’re going to release this before 4.30…

Barry Cohen: …and the records. The question is really, should the Cabinet… Why not just broadly open or have it televised. And then, if that happens, we are not going to get the right set of decisions. We are not going to get public servants to provide information for fear that… The politicians don’t want their decisions to be every option that was put in there.

Well, you see what happens now, when a Cabinet submission comes up, at the bottom of the things – here are the alternatives. We could continue to talk. We could take limited action. Or we could declare World War III. They are all options.

But some idiot in the media gets hold of it and does not look at the first two. He looks at the one that is going to make hit the headline. That sort of free discussion that is essential in Cabinet, I think is important. So the question is, ‘How long after that should they be available to the public?’ I am inclined to think that the 30-year rule seems to work. I wouldn’t budge too much on that at the moment.

Still, would they be embarrassing? Well, yes, but after 30 years, you’re probably damn near dead anyway, so who cares?

Audience member: Just following on the thread of the challenges of recordkeeping in the electronic age... I would be interested to hear whether the panel, and perhaps not Stephen, because I think I know what Stephen’s views are on this… [laughs] Does the panel think that the Archives Act should give the National Archives a stronger role in the creation of records?

Michael McKernan: A stronger role in the creation of records or a stronger role in the management of other related records?

Audience member: No. The creation of records, whether the records are being created, are they put into systems that can manage them appropriately? Which all leads, of course, to access.

Dennis Pearce: This is a question of auditing, the way in which departments handle their material, is what you are saying, is it?

Audience member: Yes. That is one aspect. Yes. And also the creation advice as well as auditing and whether the records have been cleared. Should the Archives Act have that stronger role?

Dennis Pearce: Gee, she asks hard questions, doesn’t she?

Michael McKernan: Well, I was going to say, as the Americans would say, that this is way above my pay level! Duck!

Stephen Ellis: The Act as it is currently written, as you would know, Colleen… The Act as it is currently written is limited in that respect because, at the time it was passed, there existed an institution called the Public Service Board which had that specific responsibility and was actually quite jealous of that responsibility.

There does arise this issue about how the entire regime for Commonwealth records in active use in government agencies is managed. There is unquestionably an issue about how public administration in that aspect gets dealt with. Whether an Archives Act is an appropriate place for that to be dealt with, or whether it would be more appropriate, for example, in an amendment to the Public Service Act or in some other piece of legislation, I think that this is open to debate.

Fundamentally, of course, if records or government decisions and actions are not made by either particular people or by government agencies in the course of their business, then all of the rest of the administrative law framework, that Professor Pearce referred to, falls to the ground, because we actually don’t have an administrative process.

John Williams: Thank you.

Audience member: My question goes back to access and the 30-year rule. The question is, really, how do you get started on changing from 30 years to something less?

I think Dennis Pearce has partly answered that. But the problem seems to me and that I’d like some comment on is: sure the FOI Act and an examination of this is going to open up those access issues, and the access provisions in the Archives Act, of course, almost mirror [inaudible] certificates. But, there is another Act, which is going to collide with them and that is the Privacy Act.

The further you come down, the more you are going to collide with that. There are some extraordinarily exaggerated notions of privacy abroad. There are some very genuine issues on privacy as well. But most of them are not the ones that actually seem to cause the hullabaloo, if you like. It is an extraordinarily sensitive area where these things are going to collide.

Ten years. I think the ACT government actually has ten years for its Cabinet reports. It would seem to me that you can do it more gradually, 20 years, perhaps. But how, really, would you start a public debate on this issue?

Dennis Pearce: You are looking at me? I don’t know why?

One of the variables in all of this, of course, is to adopt a tiered system of release. As you go from fairly... the documents, that really aren’t that sensitive at all through to documents that are very sensitive, so you release them sequentially.

The downside of that, of course, is you haven’t got a beautiful cut off. What you have now got says 30 years. Well, it is all out or all in. And there is no argument about it. There is great advantage in having that.

But there is a possibility of adopting a ‘halfway house,’ and the Cabinet documents that Barry is, quite understandably, concerned about, fall on the line of saying that they have to be held for a considerable time. Whereas the run of the mill document that most departments generate could come out after five years or ten years or what have you.

But lurking under this, the point that has been properly made is that you have a constant basic collision between the operation of privacy and access to information. Nobody has yet worked out how to handle that properly.

At one stage, the Canadians had a Privacy Commissioner and an Information Commissioner. We look as though we are heading in the same direction if the government is to be believed.

Now, in Canada, the Privacy Commissioner and the Information Commissioner fought up hill and down dale, because they each came from their own viewpoint and had difficulty finding middle ground. This is a real danger.

If you do set up a body, or two separate bodies, that are dealing with the same set of information, then I don’t know if there is an easy answer. And I don’t know whether David Solomon dealt with it in his quite superb report. It is enormous and I have not spent enough time looking at it. But it is one of the fundamentals that has to be grappled with in this area.

Barry Cohen: I mentioned before the ‘Dunera boys’ and their records. They were donated 40 years before they were released. And I also have had a number of experiences with people and constituents of mine where I had to make representations about… I don’t mind if it is released tomorrow, as long as nobody is hurt by it, innocent people.

What happened in the case of the ‘Dunera boys’, and the constituents that I made representations of, was that there were matters in their files that they would not want generally known.

I remember a particular fellow who I met representation after representation to get a TPI pension for him. I kept getting knocked back and I couldn’t understand why. Finally I got the record to another colleague, he trained as a doctor. The reason why was asking for a TPI pension was that during World War I, he was posted to Egypt and, yes, he was wounded; he got gonorrhoea or syphilis in an Egyptian brothel. They knocked him back on these grounds. Finally, they said that this was in the line of fire. And they granted it.

Now, that was an unfortunate choice of phrase. Despite with the ‘Dunera’, there were a lot of cases here, or rather a number of cases where the full revelation would have been embarrassing to people. I don’t know the details of it. But if you can go through, if someone can go through and say ‘Look, this is not going to hurt anybody’, then that information could go out as soon as possible.

At most, I would think that 99 per cent of it would be of that nature. Not that I would want to read through it myself.

John Williams: Thank you very much. I think that probably brings our afternoon with the Archives Act to a close. As we know, there are others in the series that you can very much look forward to.

Copyright National Archives of Australia 2017