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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
State Records Bill 1999
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Authorized applicant 7
5. Act binds Crown 8
6. Application to records created or received before
commencement 8
7. Application to State organizations 8
8. Application to former government organizations 8
9. Effect on other enactments 9
10. Person responsible for State organization's obligations 9
Part 2 -- Record keeping plans for
parliamentary departments
11. Content of plans 11
12. Parliamentary departments to have plans 12
13. Amending plans 13
14. Review of plans 13
15. Effect of plans 13
page i
83--1
State Records Bill 1999
Contents
Part 3 -- Record keeping plans for
government organizations
Division 1 -- General
16. Content of plans 15
17. Effect of plans 16
Division 2 -- Plans of government organizations
other than those to which Division 3 applies
18. Application 16
19. Government organizations to have plans 17
20. Existing organizations to lodge draft plans 17
21. New organizations to lodge draft plans 17
22. Director to report on draft plans 17
23. Commission may approve draft plans 18
24. Amending plans 18
Division 3 -- Plans of the Commission, the State
Records Office and Schedule 3 organizations
25. Commission to have plan 18
26. State Records Office to have plan 19
27. Schedule 3 organizations to have plans 20
Division 4 -- Reviews of and periodic reports about
plans
28. Review of plans 20
29. Government organizations to report periodically 21
30. Reports to be given to Parliament 21
Part 4 -- Control of State records
31. Control of records that are not State archives 23
32. State archives to be transferred to State archives
collection 23
33. Contracting-out of record keeping not prevented 24
page ii
State Records Bill 1999
Contents
Part 5 -- State archives
Division 1 -- General
34. State archives identified 25
35. State archives collection 25
36. Director has control of State archives collection 25
Division 2 -- Restricted access archives
37. Restricted access archives identified 26
38. When archives cease to be restricted access archives 26
Division 3 -- Archives keeping plan
39. Director to have plan 27
40. Approval of plan 28
41. Plan to be reviewed 28
42. Periodic report about plan 28
Division 4 -- Destruction of archives
43. Destruction of archives 29
Part 6 -- Access to government records
44. Records that are not State archives 30
45. State archives that are not restricted access archives 30
46. Restricted access archives 30
47. Archives at least 75 years old 31
48. Archives containing exceptionally sensitive
information 31
49. Medical etc. information, limited access to 32
50. Applying for access to State archives 33
51. Government organization to have access to its
archives 33
Part 7 -- Recovering government records
52. Direction to deliver 34
53. Court action to recover 34
54. Compensation for recovered records 34
55. Reciprocal agreements to recover government records 35
56. No limitation period etc. 35
page iii
State Records Bill 1999
Contents
Part 8 -- State Records Commission
Division 1 -- General
57. Commission established 36
58. Membership 36
59. Provisions about membership and meetings 36
60. Functions 36
61. Principles and standards 37
62. Committees of the Commission 39
63. Facilities and services for the Commission 39
64. Annual and special reports to Parliament 40
Division 2 -- Relationship with the Minister
65. Commission to be generally independent 41
66. Minister to have access to information 41
Division 3 -- Investigative powers
67. Commission's right of access to government records 42
68. Commission may request report on record keeping 43
69. Commission to have powers of special inquirer under
Public Sector Management Act 1994 43
Part 9 -- Administrative matters
70. Director of State Records 45
71. Staff 45
72. State Records Office 45
73. Director's functions 45
74. Director's right of access to government records 46
75. Director's contractual powers 47
Part 10 -- General
76. Information about Aboriginal Australians 48
77. Confidentiality 48
78. Offences 49
79. Evidential matters 50
80. Protection from defamation or breach of confidence
actions 51
81. Protection from criminal actions 52
82. Protection from personal liability for wrongdoing 52
page iv
State Records Bill 1999
Contents
83. Crown's rights in respect of government records 52
84. Regulations 52
Schedule 1 -- Government organizations
Schedule 2 -- Organizations that are not
government organizations
Schedule 3 -- Certain government
organizations
Schedule 4 -- Provisions applicable to the
Commission
Defined Terms
page v
Western Australia
LEGISLATIVE ASSEMBLY
State Records Bill 1999
A Bill for
An Act to provide for the keeping of State records and for related
purposes.
The Parliament of Western Australia enacts as follows:
page 1
State Records Bill 1999
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the State Records Act 1999.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Interpretation
(1) In this Act --
10 "authorized applicant", in relation to an application to the
Commission, means a person authorized under section 4 to
make the application;
"Commission" means the State Records Commission
established by section 57;
15 "control", in relation to a record, means the responsibility for
keeping it but does not include the responsibility for
creating it;
"destroy", in relation to a record, means to deal with the
record --
20 (a) so that any or all of the information recorded or
stored on it is obliterated or rendered illegible or
irrecoverable; or
(b) so that it can not convey a meaning in a visible,
audible or recoverable form;
25 "Director" means the Director of State Records referred to in
section 70;
page 2
State Records Bill 1999
Preliminary Part 1
s. 3
"exempt record" means a record --
(a) control of which is given by a State organization to
another person in the course of the organization's
operations;
5 (b) that is part of publicly available library material held
by a State organization for reference purposes;
(c) that was not created by a State organization and that
is part of the collection of a State collecting
institution;
10 "FOI Act" means the Freedom of Information Act 1992;
"government organization" means an organization in
Schedule 1 but does not include an organization in
Schedule 2;
"government organization employee" means --
15 (a) a person who, whether or not an employee, alone or
with others governs, controls or manages a
government organization;
(b) a person who, under the Public Sector Management
Act 1994, is a public service officer of a government
20 organization; or
(c) a person who is engaged by a government organization,
whether under a contract for services or otherwise,
and includes, in the case of a government organization
referred to in item 5 or 6 of Schedule 1, a ministerial officer
25 (as defined in the Public Sector Management Act 1994)
assisting the organization;
"government record" means a record created or received by --
(a) a government organization; or
(b) a government organization employee in the course of
30 the employee's work for the organization,
but does not include an exempt record;
page 3
State Records Bill 1999
Part 1 Preliminary
s. 3
"keep", in relation to a record, has the meaning affected by
subsection (2);
"parliamentary department" means a department that is
deemed to have been constituted in relation to the
5 administration of Parliament for the purposes of the
Financial Administration and Audit Act 1985 by
regulations made under section 3(2) of that Act;
"parliamentary record" means a record created or received
by --
10 (a) a parliamentary department; or
(b) a person in the course of the person's work for the
department, whether the person is employed under a
contract of service or is engaged under a contract for
services or otherwise,
15 but does not include an exempt record;
"record" means any record of information however recorded
and includes --
(a) any thing on which there is writing or Braille;
(b) a map, plan, diagram or graph;
20 (c) a drawing, pictorial or graphic work, or photograph;
(d) any thing on which there are figures, marks,
perforations, or symbols, having a meaning for
persons qualified to interpret them;
(e) anything from which images, sounds or writings can
25 be reproduced with or without the aid of anything
else; and
(f) any thing on which information has been stored or
recorded, either mechanically, magnetically, or
electronically;
30 "record keeping plan" means --
(a) in relation to a parliamentary department, the record
keeping plan approved in respect of the department
page 4
State Records Bill 1999
Preliminary Part 1
s. 3
under Part 2, as the plan is amended from time to
time under that Part;
(b) in relation to a government organization, the record
keeping plan approved in respect of the organization
5 under Part 3, as the plan is amended from time to
time under that Part;
"relevant Minister", in relation to a Schedule 3 organization,
means the Minister to whom the administration of the Act
under which the organization is established or continued is
10 for the time being committed by the Governor;
"reproduce", in relation to a record, has the meaning affected
by subsection (3);
"restricted access archive" means a State archive that is a
government record and to which access is restricted until it
15 is of a certain age;
"retention period" in relation to a record, means the period for
which the record must be kept before it may be destroyed;
"Schedule 3 organization" means a government organization
in Schedule 3;
20 "State archive" means a State record that is to be retained
permanently;
"State archives collection" means the collection of State
archives referred to in section 35;
"State collecting institution" means --
25 (a) the Art Gallery of Western Australia preserved and
continued by the Art Gallery Act 1959;
(b) the State Reference Library (as defined in the Library
Board of Western Australia Act 1951); and
(c) the Western Australian Museum constituted under the
30 Museum Act 1969;
page 5
State Records Bill 1999
Part 1 Preliminary
s. 3
"State organization" means --
(a) a parliamentary department; or
(b) a government organization;
"State record" means --
5 (a) a parliamentary record; or
(b) a government record;
"State Records Office" means the entity referred to in section
72;
"successor", in relation to a government organization that is
10 abolished or that ceases to be a government organization,
means the government organization (if any) that takes over
that organization's functions;
"unauthorized possession", in relation to a government record,
means possession that is not authorized by any of the
15 following --
(a) the record keeping plan of the government
organization that last had possession of, or that has
the control of, the record;
(b) the government organization that last had possession
20 of, or that has the control of, the record;
(c) the archives keeping plan;
(d) the Director;
(e) a written law;
(f) an order or determination of a court or tribunal.
25 (2) In this Act a reference to keeping records or record keeping
includes a reference --
(a) to creating, maintaining, indexing, organizing, storing,
preserving, securing, retaining and managing records;
and
page 6
State Records Bill 1999
Preliminary Part 1
s. 4
(b) to maintaining, preserving, securing and retaining the
means by which any information on a record can be
recovered.
(3) In this Act a reference to reproducing a record in another form
5 includes a reference to reproducing the information in the record
by another means.
For example: a paper record could be reproduced in the form of
a microfilm or it could be scanned and the information in it
digitized for reproduction by means of a computer.
10 (4) In this Act a State organization's State records are those records
that the organization has created or received or taken control of.
(5) In this Act a reference to transferring a record to another person
includes a reference to transferring the means of recovering the
record's information to the person.
15 (6) In this Act the age of a record is to be determined from the date
when it first became a State record.
(7) Notes and examples in this Act are provided to assist
understanding and do not form part of the Act.
4. Authorized applicant
20 If under section 37(2)(b), 38(3), or 48(3) a government
organization could apply to the Commission in relation to a
State archive but the organization has been abolished or has
ceased to be a government organization, then the application
may be made by --
25 (a) the successor (if any) to the former organization that
took over the function of the former organization to
which the archive most closely relates;
(b) the Minister administering the Royal Commissions
Act 1968 if the former organization was a Royal
30 Commission; or
page 7
State Records Bill 1999
Part 1 Preliminary
s. 5
(c) the Director in any other case.
5. Act binds Crown
This Act binds the Crown.
6. Application to records created or received before
5 commencement
This Act applies to any record that on the commencement of
this Act is a State record, even though the record was created or
received by or on behalf of a State organization before then and
notwithstanding that the organization may have been abolished
10 or ceased to be a State organization.
7. Application to State organizations
This Act applies to a State organization unless this Act or
another written law expressly says otherwise.
8. Application to former government organizations
15 (1) In this section --
"former organization" means a government organization that
is abolished or that ceases to be a government organization.
(2) A government organization that is about to become a former
organization is to notify the Director accordingly.
20 (3) Subject to Part 4, control of a government record kept by a
former organization is to be taken --
(a) if there is only one successor to the former
organization -- by that successor;
(b) if there are 2 or more successors to the former
25 organization -- by the successor that takes over the
function to which the record most closely relates;
page 8
State Records Bill 1999
Preliminary Part 1
s. 9
(c) if a person that is not a government organization takes
over the function of the former organization to which
the record relates -- by that person; or
(d) if the functions of the former organization are not taken
5 over by any person -- by a government organization
designated by the Minister.
(4) A government organization that takes control of a government
record from a former organization must keep that record in
accordance with the former organization's record keeping plan
10 until the organization's own record keeping plan is amended.
(5) If a person that is not a government organization takes control
of a government record from a former organization --
(a) the person is to be taken to be a government
organization for the purposes of this Act; and
15 (b) the former organization's record keeping plan is to be
taken to be the person's record keeping plan.
(6) This section is subject to any express provision in a written law
about the records of a former organization.
9. Effect on other enactments
20 (1) If a provision in another written law requires a government
organization to keep a record in respect of any matter and that
provision is inconsistent with a provision in this Act, the
provision in the other written law prevails.
(2) This Act does not affect the operation of the Royal Commission
25 (Custody of Records) Act 1992.
10. Person responsible for State organization's obligations
(1) The individual responsible for ensuring that a parliamentary
department complies with this Act is the individual who under
the Financial Administration and Audit Act 1985 is the
30 accountable officer for that department.
page 9
State Records Bill 1999
Part 1 Preliminary
s. 10
(2) Where a government organization is not an individual, the
individual responsible for ensuring that a government
organization complies with this Act is the individual who, under
the FOI Act, is the principal officer of the organization.
5 (3) If under the FOI Act a government organization that is not an
individual does not have a principal officer, the individual
responsible for ensuring that the organization complies with this
Act is the individual who holds the office or class of office
prescribed by the regulations to be the office responsible in
10 respect of that organization.
(4) The chief executive officer of the department principally
assisting the Premier is responsible for ensuring that the
government organizations described in items 3, 4, 5 and 6 of
Schedule 1 comply with this Act.
page 10
State Records Bill 1999
Record keeping plans for parliamentary departments Part 2
s. 11
Part 2 -- Record keeping plans for parliamentary
departments
11. Content of plans
(1) A record keeping plan in respect of a parliamentary department
5 is a record setting out --
(a) the matters about which parliamentary records are to be
created by the department; and
(b) how the department is to keep its parliamentary records.
(2) A parliamentary department's record keeping plan must be
10 consistent with any written law to which the department is
subject when performing its functions.
(3) Without limiting subsection (1), a parliamentary department's
record keeping plan must set out --
(a) those parliamentary records that will be retained
15 permanently;
(b) the retention period for those parliamentary records that
are not to be retained permanently; and
(c) the systems to ensure the security of the parliamentary
records and compliance with the record keeping plan.
20 (4) A parliamentary department's record keeping plan may set out
the manner in which records will be created.
(5) A parliamentary department's record keeping plan may
provide --
(a) for a parliamentary record to be reproduced in another
25 form;
(b) for the destruction of a parliamentary record if a
reproduction of it is being kept, even though the
destruction occurs at a time when the record would
otherwise not be able to be lawfully destroyed.
page 11
State Records Bill 1999
Part 2 Record keeping plans for parliamentary departments
s. 12
(6) A parliamentary department's record keeping plan may set
out --
(a) whether or not public access is to be permitted to a
parliamentary record or class of parliamentary record;
5 (b) if public access is to be permitted, the age of the record
at which it will be permitted.
12. Parliamentary departments to have plans
(1) Each parliamentary department is to have a record keeping plan
approved under this section.
10 (2) Within 12 months after this section commences a parliamentary
department must submit a draft record keeping plan --
(a) in the case of a department concerned with
administration of the Legislative Council -- to the
President of the Legislative Council;
15 (b) in the case of a department concerned with the
administration of the Legislative Assembly -- to the
Speaker of the Legislative Assembly; and
(c) in the case of any other department -- to both the
President and the Speaker.
20 (3) A draft record keeping plan must be prepared in consultation
with the Commission and taking notice of any relevant
principles and standards established by the Commission under
section 61.
(4) The President or the Speaker, as the case requires, may approve
25 or refuse to approve a draft record keeping plan submitted under
subsection (2)(a) or (b).
(5) A draft record keeping plan submitted under subsection (2)(c)
may be refused approval either by the President or by the
Speaker or it may be approved by both of them.
page 12
State Records Bill 1999
Record keeping plans for parliamentary departments Part 2
s. 13
(6) If a parliamentary department's draft record keeping plan is
refused approval the department must submit another draft plan
within one month or such time as is directed by the President or
the Speaker or both, as the case requires.
5 13. Amending plans
If a parliamentary department wants to amend its record keeping
plan it must submit a draft amendment to the relevant person
under section 12(2) and section 12(3) to (6) apply to the draft
amendment as if it were a draft record keeping plan.
10 14. Review of plans
(1) A parliamentary department may review its record keeping plan
at any time.
(2) Not more than 5 years is to elapse between the approval of a
parliamentary department's record keeping plan and a review of
15 it or between one review and another.
(3) When a parliamentary department has reviewed its record
keeping plan, it must submit a report of the review to the
relevant person under section 12(2).
15. Effect of plans
20 (1) A parliamentary department's record keeping plan must be
complied with by --
(a) every member of Parliament;
(b) the Clerk and Deputy Clerks of both Houses;
(c) every person employed in a parliamentary department;
25 and
(d) every person engaged under a contract for services to
provide services to a parliamentary department.
page 13
State Records Bill 1999
Part 2 Record keeping plans for parliamentary departments
s. 15
(2) If a person does not comply with a parliamentary department's
record keeping plan, the department is to report the matter to the
President or the Speaker or both of them, as the case requires.
(3) If a matter is reported under subsection (2), the President or the
5 Speaker or both of them, as the case requires, may take such
action as they see fit including reporting the matter to a House
or to both Houses which may deal with the matter as a
contempt.
page 14
State Records Bill 1999
Record keeping plans for government organizations Part 3
General Division 1
s. 16
Part 3 -- Record keeping plans for government
organizations
Division 1 -- General
16. Content of plans
5 (1) A record keeping plan in respect of a government organization
is a record setting out --
(a) the matters about which records are to be created by the
organization; and
(b) how the organization is to keep its government records.
10 (2) A government organization's record keeping plan must --
(a) comply with principles and standards established by the
Commission under section 61;
(b) ensure that the government records kept by the
organization properly and adequately record the
15 performance of the organization's functions; and
(c) be consistent with any written law to which the
organization is subject when performing its functions.
(3) Without limiting subsection (1), a record keeping plan must set
out --
20 (a) those government records that will be State archives;
(b) those State archives that will be restricted access
archives and the ages at which they will cease to be
restricted access archives;
(c) the retention period for those government records that
25 are not State archives; and
(d) the systems to ensure the security of government records
and compliance with the record keeping plan.
Note: "retention period" is defined in section 3.
page 15
State Records Bill 1999
Part 3 Record keeping plans for government organizations
Division 2 Plans of government organizations other than those to which
Division 3 applies
s. 17
(4) A record keeping plan may set out the manner in which records
will be created.
(5) A record keeping plan may provide --
(a) for a government record to be reproduced in another
5 form;
(b) for the destruction of a government record if a
reproduction of it is being kept, even though the
destruction occurs at a time when the record would
otherwise not be able to be lawfully destroyed.
10 (6) A government organization's record keeping plan may provide
that some or all of the organization's State archives --
(a) are never to be transferred to the State archives
collection under section 32(1); or
(b) are to be transferred at a time other than that prescribed
15 by that section.
17. Effect of plans
A government organization's record keeping plan must be
complied with by --
(a) the government organization; and
20 (b) every government organization employee of the
organization.
Division 2 -- Plans of government organizations other than
those to which Division 3 applies
18. Application
25 This Division applies to every government organization other
than the Commission, the State Records Office and Schedule 3
organizations.
page 16
State Records Bill 1999
Record keeping plans for government organizations Part 3
Plans of government organizations other than those to which Division 2
Division 3 applies
s. 19
19. Government organizations to have plans
Every government organization must have a record keeping
plan that has been approved by the Commission under
section 23.
5 20. Existing organizations to lodge draft plans
(1) A government organization in existence when this Act
commences must submit its draft record keeping plan to the
Director.
(2) The Commission, by order or orders published in the Gazette, is
10 to prescribe the timing of the progressive introduction after the
commencement of this Act of the requirement in subsection (1).
21. New organizations to lodge draft plans
A government organization that is created after this Act
commences --
15 (a) must submit its draft record keeping plan to the Director
within 6 months after its creation and in any event
before it is abolished or ceases to be a government
organization; and
(b) must keep records in accordance with principles and
20 standards established by the Commission under section
61 until the Commission approves its record keeping
plan.
22. Director to report on draft plans
(1) The Director must prepare a report for the Commission about
25 every draft record keeping plan submitted to the Director.
(2) The Director's report must include a recommendation as to
whether or not the draft plan should be approved by the
Commission.
page 17
State Records Bill 1999
Part 3 Record keeping plans for government organizations
Division 3 Plans of the Commission, the State Records Office and
Schedule 3 organizations
s. 23
(3) The Director must submit the draft plan and his or her report
about it to the Commission.
23. Commission may approve draft plans
(1) The Commission may approve or refuse to approve a
5 government organization's draft record keeping plan.
(2) If the Commission refuses to approve a draft plan it must give
its reasons for doing so to the government organization
concerned.
(3) If a government organization's draft plan is refused approval the
10 organization must submit another draft plan to the Director
within such time as the Commission directs.
24. Amending plans
(1) If a government organization wants to amend its record keeping
plan it must submit a draft amendment to the Director.
15 (2) Sections 22 and 23 apply to the draft amendment as if it were a
draft record keeping plan.
Division 3 -- Plans of the Commission, the State Records Office
and Schedule 3 organizations
25. Commission to have plan
20 (1) The Commission must have a record keeping plan that has been
approved by the Minister under this section.
(2) The Commission must submit its draft record keeping plan to
the Minister within 6 months after this section commences.
(3) The Minister may approve or refuse to approve the draft plan.
25 (4) If the Minister refuses to approve the draft plan the Minister
must give reasons for doing so to the Commission.
page 18
State Records Bill 1999
Record keeping plans for government organizations Part 3
Plans of the Commission, the State Records Office and Division 3
Schedule 3 organizations
s. 26
(5) If the Commission's draft plan is refused approval the
Commission must submit another draft plan within such time as
the Minister directs.
(6) If the Commission wants to amend its record keeping plan it
5 must submit a draft amendment to the Minister and
subsections (3) to (5) apply as if the draft amendment were a
draft plan.
26. State Records Office to have plan
(1) The State Records Office must have a record keeping plan that
10 has been approved by the Commission under this section.
(2) The State Records Office's plan is not to relate to the State
archives collection.
(3) The Director must submit the State Records Office's draft
record keeping plan to the Commission within 6 months after
15 this section commences.
(4) The Commission may approve or refuse to approve the draft
plan.
(5) If the Commission refuses to approve the draft plan it must give
its reasons for doing so to the Director.
20 (6) If the State Records Office's draft plan is refused approval the
Director must submit another draft plan within such time as the
Commission directs.
(7) If the Director wants to amend the State Records Office's record
keeping plan the Director must submit a draft amendment to the
25 Commission and subsections (4) to (6) apply as if the draft
amendment were a draft plan.
page 19
State Records Bill 1999
Part 3 Record keeping plans for government organizations
Division 4 Reviews of and periodic reports about plans
s. 27
27. Schedule 3 organizations to have plans
(1) Every Schedule 3 organization must have a record keeping plan
that has been approved by its relevant Minister under this
section.
5 (2) A Schedule 3 organization must submit its draft record keeping
plan to its relevant Minister.
(3) The Commission, by order or orders published in the Gazette, is
to prescribe the timing of the progressive introduction after the
commencement of this Act of the requirement in subsection (2).
10 (4) The relevant Minister may approve or refuse to approve the
organization's draft record keeping plan.
(5) If the relevant Minister refuses to approve the draft plan the
relevant Minister must give reasons for doing so to the
organization.
15 (6) If the organization's draft plan is refused approval it must
submit another draft plan within such time as the relevant
Minister directs.
(7) If the organization's draft plan is approved, it must give the
Commission a copy of the approval.
20 (8) If a Schedule 3 organization wants to amend its record keeping
plan it must submit a draft amendment to the relevant Minister
and subsections (4) to (7) apply as if the draft amendment were
a draft plan.
Division 4 -- Reviews of and periodic reports about plans
25 28. Review of plans
(1) A government organization may review its record keeping plan
at any time.
page 20
State Records Bill 1999
Record keeping plans for government organizations Part 3
Reviews of and periodic reports about plans Division 4
s. 29
(2) A government organization must review its record keeping plan
whenever there is any significant change to the organization's
functions.
(3) The Commission may require a government organization, other
5 than a Schedule 3 organization, to review its record keeping
plan.
(4) The relevant Minister may require a Schedule 3 organization to
review its record keeping plan.
(5) Not more than 5 years is to elapse between the approval of a
10 government organization's record keeping plan and a review of
it or between one review and another.
(6) When a government organization, other than the Commission or
a Schedule 3 organization, has reviewed its record keeping plan
it must submit a report of the review to the Commission.
15 (7) When a Schedule 3 organization has reviewed its record keeping
plan it must submit a report of the review to its relevant Minister.
29. Government organizations to report periodically
(1) Every government organization, other than a Schedule 3
organization, must report in writing to the Commission at such
20 intervals as the Commission from time to time directs about its
record keeping plan and its compliance with the plan.
(2) A Schedule 3 organization must report in writing to its relevant
Minister at such intervals as the relevant Minister from time to
time directs about its record keeping plan and its compliance
25 with the plan.
30. Reports to be given to Parliament
(1) As soon as practicable after the Commission receives a report
under section 29 it must give a copy to Parliament.
page 21
State Records Bill 1999
Part 3 Record keeping plans for government organizations
Division 4 Reviews of and periodic reports about plans
s. 30
(2) As soon as practicable after a relevant Minister receives a report
under section 29 the Minister must give a copy to Parliament.
(3) For the purpose of subsections (1) and (2), section 64(3), with
any necessary changes, applies.
page 22
State Records Bill 1999
Control of State records Part 4
s. 31
Part 4 -- Control of State records
31. Control of records that are not State archives
A State organization must keep those of its State records that are
not State archives until it destroys them in accordance with its
5 record keeping plan.
32. State archives to be transferred to State archives collection
(1) Unless its record keeping plan says otherwise, a government
organization must transfer a State archive that is under its
control to the State archives collection when the archive
10 becomes 25 years old.
(2) A government organization may transfer a State archive under
its control to the State archives collection before the archive
becomes 25 years old if the organization does not require the
archive for current administrative purposes.
15 (3) A State organization must give the Director at least 30 days
written notice of its intention to transfer a State archive to the
State archives collection.
(4) If the Director is unable to accept the transfer of the State
archive to the State archives collection at the intended time, the
20 Director must give the State organization written notice of that
fact and directions as to keeping the archive until the Director is
able to accept the transfer of the archive.
(5) A State organization that is given notice under subsection (4)
must comply with the directions at its expense.
25 (6) When a State archive is transferred to the State archives
collection by a State organization --
(a) the organization's record keeping plan ceases to apply to
the archive; and
(b) the organization ceases to have control of it.
page 23
State Records Bill 1999
Part 4 Control of State records
s. 33
(7) This section does not apply to a government organization until a
record keeping plan has been approved under Part 3 in respect
of it.
33. Contracting-out of record keeping not prevented
5 (1) This Part does not prevent a State organization from entering
into a contract or arrangement with a person under which the
person is to perform any aspect of record keeping for the
organization.
(2) If a government organization enters into such a contract or
10 arrangement with a person that is not a government organization
it must notify the Director accordingly.
(3) If a State organization enters into such a contract or
arrangement with a person, any State record subject to the
contract or arrangement --
15 (a) remains under the control of the organization and
control of it is not to be taken as having been transferred
to the person; and
(b) remains subject to this Act and the organization's record
keeping plan.
page 24
State Records Bill 1999
State archives Part 5
General Division 1
s. 34
Part 5 -- State archives
Division 1 -- General
34. State archives identified
A State record is a State archive if --
5 (a) the record keeping plan of the State organization that
has control of it says it is;
(b) another written law says it is; or
(c) it is in the State archives collection.
35. State archives collection
10 The State archives collection consists of --
(a) State archives that on the commencement of this Act are
taken to be in the collection;
(b) State archives that have been transferred to the
collection under section 32;
15 (c) records that have been transferred to the collection under
another written law; and
(d) records that have been transferred to the collection with
the approval of the Director.
36. Director has control of State archives collection
20 (1) The Director has control of the State archives that are in the
State archives collection.
(2) The Director must keep the State archives that are in the State
archives collection in accordance with the archives keeping
plan.
page 25
State Records Bill 1999
Part 5 State archives
Division 2 Restricted access archives
s. 37
Division 2 -- Restricted access archives
37. Restricted access archives identified
(1) A State archive that is a government record and that is not in the
State archives collection is a restricted access archive if the
5 record keeping plan of the government organization that has
control of it says it is.
(2) A State archive that is a government record and that is in the
State archives collection is a restricted access archive if --
(a) at the time when it was transferred to the collection by a
10 government organization, the organization's record
keeping plan said it was; or
(b) after it is transferred to the State archives collection by a
government organization, the Commission, on an
application by the government organization or by an
15 authorized applicant, directs that it is a restricted access
archive.
(3) If an application is made under subsection (2)(b) in respect of a
State archive, the archive is to be treated as if it were a restricted
access archive until the Commission makes its decision.
20 (4) If under subsection (2)(b) the Commission directs that a State
archive is a restricted access archive, it must set the age at
which the archive will cease to be a restricted access archive.
(5) The Commission must review a direction made under
subsection (2)(b) at least once in the 5 years after it is made and,
25 until the archive ceases to be a restricted access archive, at least
once in the 5 years after any review.
38. When archives cease to be restricted access archives
(1) A State archive that is a restricted access archive and that is not
in the State archives collection ceases to be a restricted access
page 26
State Records Bill 1999
State archives Part 5
Archives keeping plan Division 3
s. 39
archive at the age stated in respect of that archive by the record
keeping plan of the government organization that has control of
it.
(2) A State archive that is a restricted access archive and that is in
5 the State archives collection ceases to be a restricted access
archive --
(a) at the age set for that archive by the record keeping plan
of the government organization that transferred it to the
collection at the time it was transferred; or
10 (b) the age set by the Commission under section 37 or under
subsection (4).
(3) An application may be made to the Commission for a direction
changing the age at which a restricted access archive in the State
archives collection ceases to be a restricted access archive by
15 the State organization that transferred the archive to the
collection or by an authorized applicant.
(4) On such an application the Commission may change the age at
which the restricted access archive ceases to be so.
(5) The Director must give effect to any direction made by the
20 Commission.
Division 3 -- Archives keeping plan
39. Director to have plan
(1) The Director must have an archives keeping plan that is
approved by the Commission under section 40.
25 (2) The archives keeping plan must set out how State archives in
the State archives collection are to be kept by the Director.
(3) The archives keeping plan may provide --
(a) for a State archive to be reproduced in another form;
page 27
State Records Bill 1999
Part 5 State archives
Division 3 Archives keeping plan
s. 40
(b) for the destruction of a State archive if a reproduction of
it is being kept.
40. Approval of plan
(1) The Director must submit a draft archives keeping plan to the
5 Commission within 12 months after this section commences.
(2) The Commission may approve or refuse to approve the draft
plan.
(3) If the Commission refuses to approve the draft plan it must give
its reasons for doing so to the Director.
10 (4) If a draft plan is refused approval the Director must submit
another draft plan within such time as the Commission directs.
(5) If the Director wants to amend the archives keeping plan the
Director must submit a draft amendment to the Commission and
subsections (2) to (4) apply as if the draft amendment were a
15 draft plan.
41. Plan to be reviewed
(1) The Director may review the archives keeping plan at any time.
(2) The Commission may require the Director to review the
archives keeping plan.
20 (3) Not more than 5 years is to elapse between the approval of the
archives keeping plan and a review of it or between one review
and another.
(4) When the Director has reviewed the archives keeping plan the
Director must submit a report of the review to the Commission.
25 42. Periodic report about plan
(1) The Director must report in writing to the Commission at such
intervals as the Commission from time to time directs about the
archives keeping plan and compliance with it by the Director.
page 28
State Records Bill 1999
State archives Part 5
Destruction of archives Division 4
s. 43
(2) Sections 30(1) and 64(3), with any necessary changes, apply in
respect of the report.
Division 4 -- Destruction of archives
43. Destruction of archives
5 (1) In this section --
"State archive" includes a class of State archives.
(2) If the Director is of the opinion that a State archive in the State
archives collection (including any reproduction of it) should no
longer be retained permanently the Director may apply to the
10 Commission for permission to destroy it.
(3) On receipt of such an application, the Commission is to --
(a) refer the application to the State organization that had
control of the archive before it was transferred to the
State archives collection unless that organization has
15 been abolished or has ceased to exist;
(b) refer the application to any other State organization that
in the Commission's opinion has an interest in the
archive concerned; and
(c) publish in the Gazette and a newspaper circulating
20 generally in the State a notice that gives details of the
application and the archive concerned and that invites
submissions from the public about the application.
(4) An organization to which an application is referred may make a
submission to the Commission about the application.
25 (5) After considering the application and any submission received
about it, the Commission may grant or refuse it and the Director
is to give effect to the decision accordingly.
page 29
State Records Bill 1999
Part 6 Access to government records
s. 44
Part 6 -- Access to government records
44. Records that are not State archives
If a government record is not a State archive, any right that a
person may have to be given access to it is to be determined
5 under the FOI Act.
45. State archives that are not restricted access archives
(1) This section applies to a State archive that is not a restricted
access archive and not a parliamentary record.
(2) If the State archive is not in the State archives collection and is
10 less than 25 years old, any right that a person may have to be
given access to it is to be determined under the FOI Act.
(3) If the State archive --
(a) is in the State archives collection; or
(b) is not in the State archives collection but is at least
15 25 years old,
a person has a right to be given access to it, subject to section 49
and any express provision in another written law, and the FOI
Act does not apply to or in relation to it.
46. Restricted access archives
20 (1) Any right that a person may have to be given access to a
restricted access archive is to be determined under the FOI Act.
(2) A restricted access archive in the State archives collection is not
a document of the Director or of the State Records Office for
the purposes of the FOI Act.
25 (3) If a restricted access archive is in the State archives collection
any application for access to it must be made under the FOI Act;
but if the government organization to which the application
page 30
State Records Bill 1999
Access to government records Part 6
s. 47
must be made has been abolished or has ceased to be a
government organization, the application must be made --
(a) to the successor (if any) to the former organization that
took over the function of the former organization to
5 which the restricted access archive most closely relates;
(b) to the Minister administering the Royal Commissions
Act 1968 if the former organization was a Royal
Commission; or
(c) to the Director in any other case.
10 47. Archives at least 75 years old
(1) This section applies to a State archive that is not a parliamentary
record and that is at least 75 years old and irrespective of --
(a) whether it was a restricted access archive when it turned
75; or
15 (b) whether it is in the State archives collection or not.
(2) Unless under section 48 the Commission has directed that the
State archive is an exceptionally sensitive archive, a person has
a right to be given access to the State archive, subject to section
49 and any express provision in another written law, and the
20 FOI Act does not apply to or in relation to it.
48. Archives containing exceptionally sensitive information
(1) If the Commission is satisfied on an application made under
subsection (3) that a State archive that is not a parliamentary
record contains information of such exceptional sensitivity that
25 there should not be a right to be given access to it under section
47, the Commission may direct that it is an exceptionally
sensitive archive.
(2) If the Commission makes such a direction it must set the age of
the archive at which, or the event on the occurrence of which, it
30 will cease to be an exceptionally sensitive archive.
page 31
State Records Bill 1999
Part 6 Access to government records
s. 49
(3) An application may be made to the Commission for such a
direction by the government organization that has control of a
State archive or that transferred an archive to the State archives
collection or by an authorized applicant.
5 (4) The Commission must review such a direction at least once in
the 5 years after it is made and, until the State archive ceases to
be an exceptionally sensitive archive, at least once in the 5 years
after any review.
(5) When a State archive ceases to be an exceptionally sensitive
10 archive, a person has a right to be given access to it, subject to
section 49 and any express provision in another written law, and
the FOI Act does not apply to or in relation to it.
49. Medical etc. information, limited access to
(1) A person is not entitled under section 45(3), 47(2) or 48(5) to
15 have access to a State archive that contains information about
another person's medical condition or about another person's
disability (as defined in the Disability Services Act 1993)
unless --
(a) the other person has consented to the person being given
20 access; or
(b) that information is in a form that does not --
(i) disclose the identity of the other person; or
(ii) enable the identity of the other person to be
ascertained.
25 (2) Subsection (1) does not apply to a State archive that is at least
100 years old.
page 32
State Records Bill 1999
Access to government records Part 6
s. 50
50. Applying for access to State archives
(1) An application for access to a State archive to which there is a
right of access under section 45(3), 47(2) or 48(5) is to be
made --
5 (a) if it is in the State archives collection -- to the Director;
(b) if it is not in the collection -- to the government
organization that has control of it.
(2) Access to the State archive may be given in any of the ways set
out in section 27 of the FOI Act.
10 (3) For the purpose of ensuring the safe custody of and protecting
the condition of a State archive, whether in the State archives
collection or not, the Director may attach conditions to a person
having access to it.
51. Government organization to have access to its archives
15 (1) A government organization that had access to a State archive
before it was transferred to the State archives collection is
entitled to have access to it in the collection at any reasonable
time.
(2) Application for such access is to be made to the Director.
page 33
State Records Bill 1999
Part 7 Recovering government records
s. 52
Part 7 -- Recovering government records
52. Direction to deliver
(1) If the Director believes that a person has unauthorized
possession of a government record (whether or not ownership of
5 the record has passed to the person), the Director may direct the
person to deliver the record to the Director.
(2) The direction must be by a written notice signed by the Director
and given to the person and must specify a reasonable period for
delivery of the record.
10 (3) The person must comply with the direction.
Penalty: $3 000.
53. Court action to recover
(1) If a person does not comply with a direction made under section
52, the Director may apply to the District Court for an order that
15 the person deliver the government record to the Director.
(2) If the Court is satisfied that the person has unauthorized
possession of the record (whether or not ownership of the record
has passed to the person), it may --
(a) order the person to deliver the record to the Director; or
20 (b) by its warrant direct the sheriff to seize the record.
54. Compensation for recovered records
(1) If a person loses possession of a government record as a result
of a direction given under section 52 or an order or warrant
issued under section 53, the person may apply to the Minister
25 for compensation for being deprived of the record.
(2) On such an application the Minister may pay the person such
compensation as the Minister thinks fit.
page 34
State Records Bill 1999
Recovering government records Part 7
s. 55
55. Reciprocal agreements to recover government records
(1) In this section --
"reciprocal person" means a person that, under a law of the
Commonwealth, another State or a Territory that
5 corresponds with this Act, has functions that correspond
with the Director's.
(2) The Director may enter into an agreement with a reciprocal
person under which --
(a) the Director may take action in this State to recover a
10 record that under the law of the other place corresponds
to a government record and to give the record to the
reciprocal person; and
(b) the reciprocal person may take action in the other place
to recover a government record and to give the record to
15 the Director.
(3) Sections 52 and 53, with any necessary changes, apply for the
purpose of the Director taking action to recover a record for a
reciprocal person.
56. No limitation period etc.
20 (1) The Crown's and the Director's right to take legal action to
recover a government record, whether under this Part or
otherwise, is not subject to any limitation period.
(2) The Crown's and the Director's right to take legal action to
recover a government record otherwise than under this Part is
25 not limited by this Part.
page 35
State Records Bill 1999
Part 8 State Records Commission
Division 1 General
s. 57
Part 8 -- State Records Commission
Division 1 -- General
57. Commission established
A body called the State Records Commission is established.
5 58. Membership
The members of the Commission are --
(a) the person who is the Auditor General, or who is acting
in that office, under the Financial Administration and
Audit Act 1985;
10 (b) the person who is the Information Commissioner, or
who is acting in that office, under the FOI Act;
(c) the person who is the Parliamentary Commissioner for
Administrative Investigations, or who is acting in that
office, under the Parliamentary Commissioner
15 Act 1971; and
(d) a person, appointed by the Governor, who has
experience in record keeping and who is not a public
service officer within the meaning of the Public Sector
Management Act 1994.
20 59. Provisions about membership and meetings
Schedule 4 has effect.
60. Functions
(1) The Commission's functions are as set out in this Act and
include --
25 (a) monitoring the operation of and compliance with this
Act; and
page 36
State Records Bill 1999
State Records Commission Part 8
General Division 1
s. 61
(b) monitoring compliance by government organizations
with record keeping plans; and
(c) inquiring into breaches or possible breaches of this Act.
(2) In performing its functions the Commission is, as far as possible
5 to ensure --
(a) that State record keeping is of a standard that best serves
the interests of the people of this State; and
(b) that, subject to the law, government records are
accessible to the public.
10 61. Principles and standards
(1) The Commission is to establish principles and standards --
(a) governing record keeping by State organizations;
(b) governing contracts or arrangements entered into by
State organizations with persons under which the
15 persons are to perform any aspect of record keeping for
the organizations;
(c) for determining which State records should be State
archives;
(d) for determining which State archives that are
20 government records should be restricted access archives
and the ages at which they should cease to be a
restricted access archive;
(e) for determining which State archives should not be
transferred to the State archives collection under section
25 32(1); and
(f) for determining the retention periods for State records
that are not to be State archives.
(2) Before establishing, amending or repealing the principles and
standards, the Commission is to --
30 (a) consult such people as the Commission considers
desirable and practical to consult; and
page 37
State Records Bill 1999
Part 8 State Records Commission
Division 1 General
s. 61
(b) take into account the impact which the principles and
standards may have on the efficiency and effectiveness
of State organizations and endeavour to minimize any
adverse impact.
5 (3) The principles and standards --
(a) are to be published in the Gazette;
(b) come into operation on the day on which they are
published in the Gazette or on such later date as is
specified in the principles or standards; and
10 (c) may be amended or repealed by the Commission by
subsequent principles or standards.
(4) Section 42 of the Interpretation Act 1984 applies to and in
relation to the principles and standards as if they were
regulations within the meaning of that section.
15 (5) Subject to subsection (6), principles or standards have in
relation to other Acts and subsidiary legislation made under
them the force of law as if enacted as part of this Act, but are
subject to any regulations made under this Act.
(6) Nothing in subsection (5) prevents a court from inquiring into,
20 and deciding, whether or not a principle or standard or any of its
provisions --
(a) has been validly established;
(b) is inconsistent with a provision of this Act;
(c) is unrelated to the power conferred by this section to
25 establish principles and standards,
as if the principle or standard or its provision were a regulation
within the meaning of the Interpretation Act 1984.
page 38
State Records Bill 1999
State Records Commission Part 8
General Division 1
s. 62
62. Committees of the Commission
(1) The Commission is to establish a committee to advise it
about --
(a) the State records that should be State archives;
5 (b) the retention periods for those State records that are not
to be State archives; and
(c) associated matters.
(2) The committee is to include representatives from the Public
Service and bodies concerned with record keeping.
10 (3) The Commission may establish other committees to assist it in
the performance of its functions.
(4) A committee need not include a member of the Commission as
a member.
(5) The procedure for calling committee meetings and for the
15 conduct of business at those meetings is to be as determined by
the Commission or (subject to any determination of the
Commission) by the committee.
63. Facilities and services for the Commission
(1) The Minister is to ensure that the Commission is provided with
20 the facilities and services that are reasonably necessary to
enable it to perform its functions.
(2) Without limiting subsection (1) the Minister may arrange for the
Commission to make use, either full-time or part-time, of --
(a) the services of any person employed under Part 3 or
25 section 100 of the Public Sector Management Act 1994;
or
(b) any facilities or services of a department of the Public
Service.
page 39
State Records Bill 1999
Part 8 State Records Commission
Division 1 General
s. 64
(3) The arrangement is to be made by the Minister with --
(a) the department of the Public Service that principally
assists the Minister in the administration of this Act; or
(b) in the case of any other constituent of the Public
5 Service, the relevant Minister, and if necessary the
relevant employing authority (within the meaning of the
Public Sector Management Act 1994),
on terms and conditions that are agreed between them.
(4) Without limiting subsection (1) the Minister may arrange for the
10 chief executive officer of the department that principally assists
the Minister in the administration of this Act to engage or
employ, under section 100 of the Public Sector Management
Act 1994, consultants or professional, technical or other
assistance to enable the Commission to carry out its functions.
15 64. Annual and special reports to Parliament
(1) Before 1 November in each year the Commission is to submit
its annual report to Parliament about --
(a) the activities of the Commission during the previous
financial year; and
20 (b) the operation of this Act and about any legislative or
administrative changes that, in the Commission's view,
could be made to help the objects of the Act to be
achieved.
(2) In addition to its annual report the Commission may at any time
25 submit a written report to Parliament about a contravention of
this Act by a government organization.
(3) Such a report is to be given to the President of the Legislative
Council and to the Speaker of the Legislative Assembly who
respectively must cause a copy of it to be laid before the
30 Legislative Council and the Legislative Assembly within
15 sitting days after the report is received.
page 40
State Records Bill 1999
State Records Commission Part 8
Relationship with the Minister Division 2
s. 65
(4) The Commission must give the Minister a copy of any report it
submits to Parliament as soon as is practicable after doing so.
Division 2 -- Relationship with the Minister
65. Commission to be generally independent
5 (1) The Commission is not subject to direction by the Minister or
any other person in the performance of its functions, except as
provided in this Division.
(2) The Minister may, after consulting the Commission, issue the
Commission with directions as to the general policy to be
10 followed in the performance of any of the Commission's
functions.
(3) A direction may not be issued under subsection (2) in respect of
a particular government record or a particular government
organization.
15 (4) Every direction under this section must be in writing and the
text of it must be included in the Commission's annual report.
66. Minister to have access to information
(1) In this section --
"information" means information specified, or of a description
20 specified, by the Minister that relates to the functions of the
Commission.
(2) The Minister is entitled --
(a) to have information in the possession of the
Commission; and
25 (b) where the information is in or on a record, to have, and
make and retain copies of, that record.
page 41
State Records Bill 1999
Part 8 State Records Commission
Division 3 Investigative powers
s. 67
(3) For the purposes of subsection (2) the Minister may --
(a) request the Commission to furnish information to the
Minister;
(b) request the Commission to give the Minister access to
5 information; and
(c) for the purposes of paragraph (b) make use of the staff
of the Commission to obtain the information and furnish
it to the Minister.
(4) The Commission shall comply with a request made under
10 subsection (3) and make its facilities and services available to
the Minister for the purposes of paragraph (c) of that subsection.
Division 3 -- Investigative powers
67. Commission's right of access to government records
(1) A member of the Commission or a person authorized by the
15 Commission is entitled to have access to the government
records of a government organization, other than a Schedule 3
organization, for the purposes of performing the Commission's
functions.
(2) Subsection (1) has effect despite any other written law.
20 (3) If the relevant Minister of a Schedule 3 organization so
authorizes the Commission, the Commission is entitled to have
access to the government records of the organization for the
purposes of performing the Commission's functions.
(4) Government records to which the Commission is entitled to
25 access under subsection (1) or (3) are not documents of the
Commission for the purposes of the FOI Act.
page 42
State Records Bill 1999
State Records Commission Part 8
Investigative powers Division 3
s. 68
68. Commission may request report on record keeping
(1) The Commission may at any time request a government
organization, other than a Schedule 3 organization, to report to
it about the organization's record keeping or an aspect of the
5 organization's record keeping.
(2) The Commission may at any time request a Schedule 3
organization to report to its relevant Minister about the
organization's record keeping or an aspect of the organization's
record keeping.
10 (3) The request must be in writing and must specify when the report
is to be provided to the Commission or the relevant Minister, as
the case requires.
(4) An organization that is requested to report to the Commission or
a relevant Minister must do so in accordance with the request.
15 (5) A relevant Minister to whom a report is provided by a
Schedule 3 organization must give to the Commission --
(a) written notice of the report; and
(b) if the report indicates the Schedule 3 organization is, or
is not, complying with its record keeping plan, written
20 notice of the compliance or failure to comply.
69. Commission to have powers of special inquirer under Public
Sector Management Act 1994
(1) For the purpose of performing its functions, the Commission
may investigate the record keeping of any government
25 organization, other than a Schedule 3 organization.
(2) For that purpose the Commission, or a person authorized in
writing by it, has all the powers conferred on a special inquirer
by sections 12 and 13 of, and Schedule 4 to, the Public Sector
page 43
State Records Bill 1999
Part 8 State Records Commission
Division 3 Investigative powers
s. 69
Management Act 1994 and those provisions apply to and in
relation to --
(a) the Commission or that person as if it or the person were
a special inquirer under that Act; and
5 (b) the investigation as if it were a special inquiry under that
Act.
(3) A person authorized by the Commission under subsection (2) to
make an investigation must --
(a) within such period as the Commission requires, prepare
10 a report on the conduct, findings and any
recommendations of the investigation; and
(b) immediately after preparing the report, provide the
Commission with a copy of it.
page 44
State Records Bill 1999
Administrative matters Part 9
s. 70
Part 9 -- Administrative matters
70. Director of State Records
(1) There is to be an office in the Public Service called the Director
of State Records or by such other name as the Minister from
5 time to time directs.
(2) A person is to be appointed to the office under Part 3 of the
Public Sector Management Act 1994.
71. Staff
Officers may be appointed or made available under Part 3 of the
10 Public Sector Management Act 1994 to enable the Director to
perform the Director's functions.
72. State Records Office
The entity consisting of the Director and the officers referred to
in section 71 is to be called the State Records Office or by such
15 other name as the Minister from time to time directs.
73. Director's functions
(1) In addition to the Director's other functions under this Act, the
Director's functions are --
(a) to advise government organizations on record keeping
20 and on training their staff in record keeping and to assist
in such matters;
(b) to advise government organizations on the preparation
of and compliance with record keeping plans;
(c) as to those State archives in the State archives collection
25 to which there is unrestricted access, to provide --
(i) an information service about them;
(ii) public access to them; and
page 45
State Records Bill 1999
Part 9 Administrative matters
s. 74
(iii) appropriate facilities and services to enable them
to be effectively used for administrative
requirements and for study and research;
(d) to create and maintain a register of all State archives,
5 including those that are not in the State archives
collection;
(e) to provide such advice and assistance to the Commission
as the Commission requests; and
(f) to report to the Commission about --
10 (i) the operation and effectiveness of this Act; and
(ii) any breach or suspected breach of this Act by
any person or State organization.
(2) The Director's function under subsection (1)(f)(ii) has effect
despite any duty to keep information secret that the Director has
15 under any other written law, whether enacted before or after the
commencement of this Act.
(3) The Director may, either generally or as provided by the
instrument of delegation, delegate to any person any of the
Director's functions under this Act except this power of
20 delegation.
(4) Performance of a function by a delegate is to be treated as
performance by the Director.
74. Director's right of access to government records
(1) The Director is entitled to have access to the government
25 records of a government organization, other than a Schedule 3
organization, for the purposes of monitoring the organization's
compliance with its record keeping plan and this Act.
(2) Subsection (1) has effect despite any other written law.
page 46
State Records Bill 1999
Administrative matters Part 9
s. 75
(3) If the relevant Minister of a Schedule 3 organization so
authorizes the Director, the Director is entitled to have access to
the government records of the organization for the purposes of
monitoring the organization's compliance with its record
5 keeping plan and this Act.
(4) Government records to which the Director is entitled to access
under subsection (1) or (3) are not documents of the Director for
the purposes of the FOI Act.
75. Director's contractual powers
10 The Director may enter into a contract or an arrangement with
any person under which --
(a) the person indexes, organizes, stores, preserves, secures,
destroys or manages government records or State
archives;
15 (b) the State Records Office indexes, organizes, stores,
preserves, secures, destroys or manages records for the
person.
page 47
State Records Bill 1999
Part 10 General
s. 76
Part 10 -- General
76. Information about Aboriginal Australians
(1) If a State record contains information about --
(a) Aboriginal cultural material or an Aboriginal site (as
5 those expressions are defined in the Aboriginal Heritage
Act 1972); or
(b) any other matter relating to the heritage of Aboriginal
Australians,
these decisions must not be made unless Aboriginal bodies
10 concerned with that information have been consulted about the
decision --
(c) a decision on whether the record will be a State archive;
(d) if the record is not a State archive, a decision as to the
retention period for the record.
15 (2) If a State archive that is not a parliamentary record contains
information about Aboriginal Australians or their culture the
disclosure of which is likely to contravene Aboriginal tradition,
these decisions must not be made unless Aboriginal bodies
concerned with that tradition have been consulted about the
20 decision --
(a) a decision on whether the archive will be a restricted
access archive;
(b) a decision as to the age at which it will cease to be a
restricted access archive.
25 77. Confidentiality
(1) This section applies to --
(a) a person who is or was a member of the Commission, or
a committee of it;
page 48
State Records Bill 1999
General Part 10
s. 78
(b) a person whose services the Commission makes or made
use of, or who is or was engaged or employed to assist
the Commission; and
(c) a person who is or was the Director or an officer in the
5 State Records Office.
(2) A person to whom this section applies must not, directly or
indirectly, disclose or make use of --
(a) any information that is in a State record to which the
person has access in the course of duty;
10 (b) any information obtained in the course of duty,
except --
(c) for the purpose of performing functions under this Act;
(d) as required or allowed by this Act or under another
written law;
15 (e) in the case of a government record, with the consent of
the government organization that has control of it.
Penalty: $10 000.
78. Offences
(1) A government organization employee who does not keep a
20 government record in accordance with the record keeping plan
of the organization, commits an offence.
(2) A government organization employee who, without lawful
authority, transfers, or who offers to transfer, the possession of a
government record to a person who is not entitled to possession
25 of the record, commits an offence.
(3) A government organization employee who destroys a
government record commits an offence unless the destruction is
authorized by the record keeping plan of the organization.
page 49
State Records Bill 1999
Part 10 General
s. 79
(4) A person who destroys a government record while the record is
the subject of a notice under section 52 or an application made,
or order or warrant issued, under section 53, commits an
offence.
5 (5) A person who has unauthorized possession of a government
record and who destroys that record, commits an offence unless
the person owns the record.
(6) It is a defence to a charge of an offence under subsection (2),
(3), (4) or (5) to prove that the alleged act was done pursuant
10 to --
(a) a written law; or
(b) an order or determination of a court or tribunal.
(7) It is a defence to a charge of an offence under subsection (5) to
prove that the person had no reasonable cause to suspect that the
15 record was a government record.
Penalty: $10 000.
79. Evidential matters
(1) A copy of a government organization's record keeping plan
certified by a member of the Commission is evidence of the
20 plan and its contents and of the fact that it has been made and
approved under this Act.
(2) If under a State organization's record keeping plan a State
record is reproduced in another form, the reproduction has the
same evidential value as the record, in the absence of evidence
25 to the contrary.
(3) For the purposes of subsection (2) a certificate signed by the
individual who under section 10 is responsible for a government
organization complying with this Act, or by his or her delegate,
certifying that a record is a reproduction of a government record
30 that has been reproduced under the organization's record
keeping plan is evidence of the certificate's contents.
page 50
State Records Bill 1999
General Part 10
s. 80
(4) A copy of a State archive certified as a copy by the Director has
the same evidential value as the original, in the absence of
evidence to the contrary.
(5) Unless the contrary is proved, it is to be presumed that a
5 certificate under this section, purporting to have been signed by
a person who is authorized to sign it was signed by a person
who at the time was authorized to sign it.
(6) Subsections (2) to (5) are in addition to and do not affect the
operation of the Evidence Act 1906.
10 80. Protection from defamation or breach of confidence actions
(1) When a State archive is transferred to the State archives
collection under this Act by its author or any other person,
neither person is criminally liable or liable in tort for doing so.
(2) If access to a State archive is given under this Act by a person
15 who believes, in good faith, that this Act requires or permits the
access to be given --
(a) an action in tort for defamation or breach of confidence
does not lie against the Crown, a government
organization or a government organization employee
20 merely because access is given; and
(b) an action in tort for defamation or breach of confidence
in respect of any publication involved in, or resulting
from, the giving of access does not lie against the author
of the archive or any other person by reason of the
25 author or other person having supplied the archive to a
government organization.
(3) The giving of access to a State archive under this Act does not
constitute, for the purpose of the law on defamation or breach of
confidence, an authorization or approval of the publication of
30 the archive, or any matter it contains, by the person to whom
access is given.
page 51
State Records Bill 1999
Part 10 General
s. 81
81. Protection from criminal actions
If access to a State archive is given under this Act by a person
who believes, in good faith, that this Act requires or permits the
access to be given, the person is not guilty of an offence merely
5 because access is given.
82. Protection from personal liability for wrongdoing
(1) An action in tort does not lie against a person for anything that
the person has done, in good faith, in the performance or
purported performance of a function under this Act.
10 (2) The protection given by subsection (1) applies even though the
thing done as described in that subsection may have been
capable of being done whether or not this Act had been enacted.
(3) Despite subsection (1), the Crown is not relieved of any liability
that it might have for another person having done anything as
15 described in that subsection.
(4) In this section, a reference to the doing of anything includes a
reference to an omission to do anything.
83. Crown's rights in respect of government records
The fact that a government record is destroyed under this Act or
20 another written law does not limit the Crown's rights in respect
of any evidential value of the record.
84. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
25 necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
page 52
State Records Bill 1999
General Part 10
s. 84
(2) Without limiting subsection (1), regulations may --
(a) provide for charges for the reasonable expenses incurred
by the State Records Office in --
(i) keeping any government record for another
5 government organization;
(ii) giving a person or a government organization
access to a State archive in the State archives
collection;
(b) provide for matters in connection with giving access to
10 State archives.
page 53
State Records Bill 1999
Schedule 1 Government organizations
Schedule 1 -- Government organizations
[s. 3]
1. The Governor.
2. The Governor's Establishment referred to in the Governor's
5 Establishment Act 1992.
3. The Executive Council.
4. The Cabinet.
5. A Minister of the Crown.
6. The parliamentary secretary of the Cabinet or a parliamentary
10 secretary holding office under section 44A of the Constitution Acts
Amendment Act 1899.
7. A court or tribunal established or continued under a written law.
8. The Police Force within the meaning of the Police Act 1892.
9. An incorporated or unincorporated body established or continued for
15 a public purpose under a written law.
10. An office, post or position established or continued for a public
purpose under a written law.
11. A department as defined in the Public Sector Management Act 1994.
12. A local government or regional local government under the Local
20 Government Act 1995.
13. A Royal Commission established under the Royal Commissions
Act 1968.
14. A body or office that is established by the Governor or a Minister.
15. A commission, board, committee or other body established by, or a
25 person appointed by, the Governor or the Government of the State or
a Minister of the Crown to advise on, inquire into or investigate any
matter.
page 54
State Records Bill 1999
Organizations that are not government organizations Schedule 2
Schedule 2 -- Organizations that are not government
organizations
[s. 3]
1. The Legislative Council, the Legislative Assembly and a committee
5 of either or both of them.
2. The offices of member of the Legislative Council and member of the
Legislative Assembly.
3. A parliamentary department.
4. The organization, controlled by a member of Parliament, that is
10 concerned with dealing with constituency matters of the member,
even if it includes an electorate officer appointed under the
Parliamentary and Electorate Staff (Employment) Act 1992 to assist
the member.
5. The organization, controlled by the secretary of a parliamentary
15 political party, that is concerned with dealing with the affairs of the
party, even if it includes an electorate officer appointed under the
Parliamentary and Electorate Staff (Employment) Act 1992 to assist
the secretary.
6. The organization, controlled by the holder of an office described in
20 paragraph (d), (e) or (f) of the definition of "political office holder" in
section 3 of the Public Sector Management Act 1994, even if it
includes a ministerial officer appointed under that Act to assist the
holder of the office.
7. The organization, controlled by the leader of a party in the Legislative
25 Assembly, other than a party led by the Premier or by the Leader of
the Opposition in that House, even if it includes a ministerial officer
appointed under the Public Sector Management Act 1994 to assist the
leader.
page 55
State Records Bill 1999
Schedule 3 Certain government organizations
Schedule 3 -- Certain government organizations
[s. 3]
1. The Electricity Corporation established by the Electricity Corporation
Act 1994.
5 2. The Gas Corporation established by the Gas Corporation Act 1994.
3. The Water Corporation established by the Water Corporation
Act 1995.
page 56
State Records Bill 1999
Provisions applicable to the Commission Schedule 4
Schedule 4 -- Provisions applicable to the Commission
[s. 59]
1. Interpretation
In this Schedule --
5 "appointed member" means the member of the Commission
appointed under section 58(d);
"member" means a member of the Commission under section 58.
2. Term of office of the appointed member
(1) The appointment of a person as the appointed member is to specify a
10 term of appointment of not more than 3 years.
(2) A person who is or was the appointed member may be re-appointed as
the appointed member.
(3) The appointed member may resign by giving his or her written
resignation to the Minister.
15 (4) The Governor may terminate the appointment of the appointed
member if the Governor is satisfied that the member --
(a) is an insolvent under administration (as defined in the
Corporations Law);
(b) is incompetent, has misbehaved or has neglected his or her
20 functions as a member;
(c) has been absent, without leave and without reasonable
excuse, from 3 consecutive meetings of the Commission of
which the member has had notice;
(d) is unable to perform his or her functions as a member because
25 of illness.
3. Chairperson
The Commission is to decide which of its members is to be its
chairperson.
page 57
State Records Bill 1999
Schedule 4 Provisions applicable to the Commission
4. Meetings
(1) The Commission is to decide when it meets.
(2) The Commission may hold a meeting at which some or all members
participate by telephone or other similar means of instantaneous
5 communication, but a member who speaks on a matter at the meeting
must be able to be heard by all the other members at the meeting.
(3) At a meeting of the Commission the chairperson is to preside or, if he
or she is absent, a member chosen by those present.
(4) The Commission is to ensure that accurate minutes are kept of its
10 meetings.
(5) Subject to this clause and section 54 of the Interpretation Act 1984,
the Commission is to determine the procedure for convening and
conducting its meetings.
5. Conflicts of interest
15 (1) In this clause --
"material personal interest", in relation to a member, includes an
interest arising because of an office that the member holds in a
government organization.
(2) A member who has a material personal interest in a matter involving
20 the Commission must, as soon as possible after the relevant facts have
come to the member's knowledge, disclose the nature of the interest at
a meeting of the Commission.
Penalty: $1 000.
(3) A disclosure by a member is to be recorded in the minutes of the
25 meeting.
(4) A member who has a material personal interest in a matter being
considered by the Commission must not be present while the matter is
considered, and must not vote on the matter unless the Commission
resolves that the member should not be so disqualified.
page 58
State Records Bill 1999
Provisions applicable to the Commission Schedule 4
(5) The member with a material personal interest must not be present
while the Commission considers whether to make a resolution for the
purposes of subclause (4), and must not vote on the matter.
(6) On an application by the Commission the Minister may issue a
5 written declaration that this clause does not apply in relation to a
specified matter.
6. Leave of absence
The Commission may grant leave of absence to a member on such
terms and conditions as it thinks fit.
10 7. Remuneration
The appointed member is to be paid such remuneration and travelling
and other allowances as the Minister determines on the
recommendation of the Minister for Public Sector Management.
page 59
State Records Bill 1999
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
appointed member .............................................................................Sch. 4, cl.1
authorized applicant .................................................................................... 3(1)
Commission ................................................................................................ 3(1)
control ........................................................................................................ 3(1)
destroy ........................................................................................................ 3(1)
Director....................................................................................................... 3(1)
exempt record ............................................................................................. 3(1)
FOI Act....................................................................................................... 3(1)
former organization ..................................................................................... 8(1)
government organization ............................................................................. 3(1)
government organization employee.............................................................. 3(1)
government record....................................................................................... 3(1)
information ................................................................................................66(1)
keep ............................................................................................................ 3(1)
material personal interest ...................................................................Sch. 4, cl.5
member.............................................................................................Sch. 4, cl.1
parliamentary department ............................................................................ 3(1)
parliamentary record.................................................................................... 3(1)
reciprocal person ........................................................................................55(1)
record.......................................................................................................... 3(1)
record keeping plan ..................................................................................... 3(1)
relevant Minister ......................................................................................... 3(1)
reproduce .................................................................................................... 3(1)
restricted access archive............................................................................... 3(1)
retention period ........................................................................................... 3(1)
Schedule 3 organization............................................................................... 3(1)
State archive...................................................................................... 3(1), 43(1)
State archives collection .............................................................................. 3(1)
State collecting institution ........................................................................... 3(1)
State organization........................................................................................ 3(1)
State record ................................................................................................. 3(1)
State Records Office.................................................................................... 3(1)
successor..................................................................................................... 3(1)
unauthorized possession .............................................................................. 3(1)
page 60
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