There are a number of different laws which affect how Australian Government agencies create and manage their records. Some, like the Acts outlined below, are relevant to almost all government agencies while others are agency specific.
The Archives Act 1983 empowers the Archives to preserve the archival resources of the Australian Government – those records designated 'national archives'. Under the Act, it is illegal to destroy Australian Government records without permission from the Archives unless destruction is specified in another piece of legislation or allowed under a normal administrative practice.
The Act also establishes a right of public access to non-exempt Commonwealth records in the 'open access period' (transitioning from 30 years to 20 years over the period 2011 to 2021 under amendments to the Act passed in 2010). Different open access periods exist for Cabinet notebooks (transitioning from 50 years to 30 years over the period 2011 to 2021) and records containing Census information (99 years).
The Freedom of Information Act 1982, gives individuals the legal right to access documents held by Australian Government ministers, departments and most agencies, including Norfolk Island Government agencies. From 1 November 2010, the FOI Act also applies to documents created or held by contractors or sub-contractors who provided services to the public or third parties on behalf of agencies.
The FOI Act applies to records that are not yet in the open access period under the Archives Act unless the document contains personal information (including personal information about a deceased person). The Archives Act regulates access to records in the open access period.
When a member of the public requests information, your agency must identify and preserve all relevant sources, including records, until a final decision on the request is made. The FOI Act also sets out how agencies may correct, annotate or update records if a member of the public shows that any personal information relating to them is incomplete, incorrect, out of date or misleading.
The FOI Act also establishes the Information Publication Scheme (IPS) which requires agencies subject to the FOI Act to take a proactive approach to publishing a broad range of information on their website. The IPS does not apply to a small number of security and intelligence agencies that are exempt from the FOI Act.
As part of its government and information policy function, the OAIC is committed to leading the development and implementation of a national information policy framework to promote secure and open government. It aims to achieve this by driving public access to government information and encouraging agencies to proactively publish information.
The Privacy Act 1988 regulates the handling of personal information by Australian Government agencies, ACT government agencies, , ACT government agencies, Norfolk Island Government agencies and a range of private and not-for-profit organisations. The Privacy Act regulates the way in which personal information can be collected, its accuracy, how it is kept secure, and how it is used and disclosed. It also provides rights to individuals to access and correct the information that organisations and government agencies hold about them. Records in the open access period as defined in the Archives Act 1983 are not covered by the the Privacy Act. The Privacy Act also sets out requirements that may apply when an agency enters into a contract under which services are provided to the agency.
The Evidence Act 1995 defines what documents, including records, can be used as evidence in a Commonwealth court.
All agencies need to take account of evidence legislation. A court may need to examine records as evidence of an organisation's decisions and actions. General advice on the impact of the Evidence Act is given in the publication Commonwealth Records in Evidence (pdf, 418kb).
The Electronic Transactions Act 1999 encourages online business by ensuring that electronic evidence of transactions is not invalidated because of its format. This Act does not authorise the destruction of any Australian Government records, whether originals or copies. The obligations placed on agencies under the Archives Act 1983 for the preservation and disposal of Commonwealth records continue to apply.
The Financial Management and Accountability Act 1997 states that an APS employee who misapplies, improperly disposes of or improperly uses Commonwealth records may be in breach of the Financial Management and Accountability Act (s. 41). Regulation 12 of the Act requires that the terms of approval for a proposal to spend money be recorded in writing as soon as practicable.
Australian Government records fall within the meaning of 'public property' as defined in this Act.
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) was passed by Parliament on 28 June 2013 and will replace the Financial Management and Accountability Act 1997 (FMA Act) and the Commonwealth Authorities and Companies Act 1997 (CAC Act) from 1 July 2014. One of the objects of the PGPA Act is the proper (efficient, effective, economical and ethical) use and management of public resources. This includes Commonwealth records which under the Archives Act 1983 are the property of the Commonwealth and therefore constitute public resources.
The Crimes Act 1914 outlines crimes against the Commonwealth. Several parts of the Act relate to records. For example, section 70 prohibits public servants (or anyone working for the Australian Government, including contractors and consultants) from publishing or communicating facts, documents or information which they gain access to through their work unless they have permission to do so. This includes taking or selling records which should be destroyed.
This Act also makes it an offence for someone to intentionally destroy documents that they know may be required as evidence in a judicial proceeding.
Your agency needs to be aware of the legislation governing its own records practices.
Some legislative requirements apply to many agencies. For example, occupational health and safety legislation requires an organisation to keep certain types of records for prescribed periods of time. Requirements that apply to all agencies are included in the National Archives’ Administrative Functions Disposal Authority.
Other legislative requirements may apply only to the particular business of one or a number of agencies.
Recordkeeping requirements may be stipulated in your agency's enabling legislation (legislation that established the agency) or in specific legislation which your agency is responsible for administering.