Identifying and preserving records likely to be required in legal proceedings

Australian Government agencies should not destroy records that are, or may be, required as evidence in legal proceedings.

The National Archives of Australia recommends that agencies:

  • develop processes for monitoring and identifying legal proceedings, both current and potential, that may relate to records controlled by the agency
  • take action to prevent the destruction of any records that may relate to the proceedings identified

These processes should ensure that records are not destroyed if they are, or are likely to be, required in legal proceedings. This applies whether the proceedings are in progress, pending, or reasonably likely to occur in the future. The suspension of destruction must be implemented regardless of any existing disposal authorities issued by the National Archives and remain in place until the proceedings (including appeals) are completed, or it is confirmed that the records are not required.

Agencies required to produce records in legal proceedings

Under the Crimes Act 1914, it is an offence for a person to intentionally destroy documents they know are, or may be, required as evidence in a judicial proceeding to prevent them being used in the case.

Disposal freezes

Occasionally, the National Archives and other agencies identify current or possible legal proceedings with implications for records controlled by agencies across the Australian Government. In such cases, the National Archives or other agencies may issue a formal ‘disposal freeze’ to suspend the destruction of records relating to the issues identified.

There are currently four disposal freezes in place covering records relating to:

  • selected personnel and superannuation records concerning eligibility to join a Commonwealth superannuation scheme
  • the Vietnam War
  • atomic testing
  • Aboriginal and Torres Strait Islander people who were separated from their families

Agencies should monitor the National Archives website for updates on disposal freezes.

Further information

For more information about managing records as evidence in legal proceedings, see Records and the law.

For information about your specific legal responsibilities, consult with legal staff within your agency.

For general advice on recordkeeping or disposal freezes, contact the Agency Service Centre.