Dan, Kathryn --- "Keeping the evidence" [1998] ALRCRefJl 35; (1998) 73 Australian Law Reform Commission Reform Journal 74

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Reform Issue 73 Spring 1998

This article appeared on pages 74 – 77 of the original journal.

Keeping the evidence

Kathryn Dan reviews the Australian Law Reform Commission’s archives report.*

In the year 2030, what will we know about how the government interacted with Australian people seeking social security benefits in the late 1990s?

In the year 2005, will we be able to find out how the government responded to the disaster and devastation of Darwin caused by Cyclone Tracy?

In the year 2001, will we be able to read the documents that the founders of the nation worked on in establishing the federation of Australia in 1901?

Even today, can you find out when your great-great-grandparents migrated to Australia? We should be able to find evidence of all these events in archives.

Information about such events is contained in original documentation - the records created by those people involved at the time. Records capture evidence of actions, and archives are the organisations which make sure that the valuable records of today are kept and can be used in the future. Being able to look back at the records of government is important for people wanting to gain information about themselves and their society. Having access to records, the evidence of government actions, is also important for making sure the government is accountable to the people in its actions. It has been critical to have access to government records of the time when investigating, for example, British nuclear testing at Maralinga or the removal of Indigenous children from their families.

The records of the federal government are only one source of documentary evidence which can help us understand our society. If future generations, for example, are to know what Australia was like in the late 20th century, we will need to make sure that a selection of records is retained to tell the story. We will need records from local councils and State instrumentalities, from schools and universities, from businesses and professional associations, from religious and cultural organisations, from community bodies and individuals. But as a primary source of information about the interaction between the citizen and the state, we will also need records from the federal government.

Protecting and making accessible the records of the Commonwealth government has been the central activity of the National Archives of Australia (and its predecessors) since the Second World War. Although significant steps were made, especially in the 1960s and 1970s, it was not until 1983 that legislation was finally enacted. In 1996, Attorney-General Daryl Williams asked the Australian Law Reform Commission (ALRC) to review and report on the Archives Act 1983 and what the basic purposes of national archival legislation should be in the current legal and social environment.

Archives generally have a wide range of activities. They authorise which records should be kept and which destroyed, they describe records so that people are able to find, use and understand them, they control the process of giving access to records so that sensitive information is protected, and they promote the use of archives to the community. Increasingly, archives also participate in advising on and setting standards for how records are created. Recent legislation in Victoria, New South Wales and South Australia focuses on a standard-setting role for the archives.

With 223 recommendations, ALRC report No. 85 has covered the full range of issues affecting Commonwealth government records. The arguments presented in support of the large number of recommendations show a deep understanding of the issues associated with modern archives. A central concept in the report is that a ‘single mind’ should apply to dealings with records of the federal government. This gives a cohesiveness and consistency to most of the recommendations. Most importantly, the report sets out a comprehensive and clear list of major objectives, which it recommends be included in the legislation. In simple terms, under these objectives the legislation would mandate that records be created and preserved in an accessible way, ensure an accountable framework for evaluating records, and encourage the greatest possible public access to and use of records which are retained. Only “compelling and appealable grounds for justifying their non-disclosure” would prevent records being made available to the public when they are 30 years old.

The report shows the Commission was very conscious of the problem of the generally low profile of archives and, therefore, the difficulty in promoting both efficient management of records and the importance of keeping archives. Recommendations in the report range from the very simple, such as changing the name of the archives authority, through to more complex allocation of records responsibilities and reporting requirements.

The name change has, in fact, already been implemented. The federal archives authority which was previously known as the Australian Archives is now known as the National Archives of Australia. Though this may be a cosmetic change, it is to be hoped that this, along with the agency’s move to a new national building, will reinforce an image of the National Archives of Australia as “unequivocally a major cultural institution responsible for the federal record” (page 38, ALRC 85).

Failures in the creation and management of current records and the low priority usually accorded to recordkeeping within government are highlighted in the report. These can have disastrous consequences for the efficiency of government and the nation’s corporate memory. A series of recommendations scattered through the report may help to overcome current problems. Chief executive officers of government agencies are nominated as responsible for the creation, maintenance and preservation of records relating to the functions of their agencies. These responsibilities are tied to the purposes for creating and keeping records:

• for efficient and accountable management;

• to record rights, entitlements and obligations; and

• to document the history of the Commonwealth.

In tying the responsibilities for records to accountability and evidence of our past, the report pinpoints the central features and aims of archives. In addition to the focus on the responsibility of the head of the agency, a number of recommendations would give a substantial role to the National Archives in setting standards and guidelines for the range of activities associated with records - creation, management, appraisal, sentencing, destruction, custody, preservation and accessibility. Monitoring implementation of standards and reporting to parliament on the state of federal government recordkeeping complement these provisions. Together, these range of recommendations should support better recordkeeping practices.

A crucial question being debated by archivists throughout the world is how the archives organisation can store and preserve electronic or digital records. With the ubiquity of computers as a modern office tool, questions arise about the best way to keep these records and make them available over long periods of time. Some would argue that the nature of these records means that they can only reasonably be kept in the agency that created them, with the valuable records being progressively migrated over time. Others say that the integrity of the record can only be assured by transfer to the archives itself. In Australia, the trend is to explore the ‘distributed custody’ model. The recommendations of this report try to give flexibility to custody provisions so that the National Archives can pursue distributed custody arrangements with government agencies. The recommendations are cautious and not restrictive, allowing the archives to permit storage of the record objects (paper file, electronic message, etc.) in an agency’s custody while setting standards for how they are to be preserved and made accessible. The report is as clear as it is possible to be in the modern records environment. Ultimately, the question of custody will be resolved in practice and in negotiation with government agencies. If agencies in the future are not able to produce records for access we will know that we have failed in this area despite the flexibility of the framework.

The section on disposal of records foreshadows little change in the provisions of the current Act. It does not tamper with an area which has operated well. However, there is one aspect of the disposal recommendations which will be a challenge to implement in practice. The report suggests that agencies should let individual citizens know about disposal policies for the records they create which may relate to the person. This is a reasonable recommendation and will lead to greater transparency of government. The report goes further, though, and suggests that individual record subjects be given an opportunity to assume ownership of a record at the point when it is no longer required by the agency. While admiring the motivation for this recommendation, I suspect it will be extremely burdensome in practice. It also leaves aside the question of what an agency might do should a record relate to more than one person.

As with the 1983 Act, a large part of the report concerns itself with questions of access to records: at what point should records be generally available to the public? Are there any pieces of information which should be withheld because they would cause harm? Can decisions to withhold records be reviewed and by whom? In this area the report is to be commended for its approach to the whole access question. It emphasises and encourages the granting of access to records, noting that the ‘30-year rule’ (the statutory right of access to records when they reach this age) should be seen as a fallback. Wherever possible, discretionary access should be given to the public by the creating agency as soon as is reasonable. It also suggests simplifying the reasons for which records may be exempt from access.

The report tackles the challenging issue of records relating to Indigenous people. The value and importance of such records for Indigenous people trying to reconstruct their past with scattered information on family and culture was highlighted through the Human Rights and Equal Opportunity Commission report Bringing them home. Recommendations are sympathetic to this special interest and encourage the copying of records, assistance in establishing keeping places, and the further development of consultation processes and discussions with Indigenous people. A special access exemption for information which would be restricted under customary law or Indigenous tradition is also recommended.

The section on charging is one of the most difficult. The report presents arguments both for and against charging for use of records, and reaches relatively balanced conclusions, given that there is pressure in most environments to charge for all services. While recommending that a charge for access to the archives facility be introduced, it hedges the recommendation with ability to waive charges, and emphasises consideration of the objectives of public access.

This is perhaps as good an outcome as could be expected. One of the most refreshing aspects of the report is the breadth of vision in its view of usage of the archives. The value of archives is seen as being much more than supplying fodder for a small group of researchers. The prospect of providing a glimpse of the archives to all Australians is clearly attractive to the writers of the report. This augurs well for the future of the archives.

The Commission’s report covers many other issues, including methods of seeking access and appeal provisions, the treatment of records of the parliament, courts and royal commissions, inclusion of ministerial records under the aegis of the Act, recovery of federal government records which have passed out of government custody without authority, and provisions for records created when a government service is contracted out. One recommendation which gives the National Archives a new role is the final recommendation. It suggests the legislation specifically refer to a leadership and support role for the National Archives within the Australian archival community. Although this has been an area of increasing and successful activity by the National Archives in recent years, it will be encouraging to others in the profession to see such a role positively reinforced through legislation.

Government records are particularly important to our understanding of our history as they document the crucial relationship between individual and government. They record rights and obligations for both sides. Access to such records is central to the democratic process itself. The recommendations in this report, if adopted, will assist in ensuring that records are created today and kept to become the archival evidence of tomorrow. Through federal government and other records we will be able to learn where we came from, and so judge more clearly where we wish to go.

* Kathryn Dan is Vice President of the Australian Society of Archivists Inc. She was a consultant to the review of the Archives Act and the Society made several submissions to the inquiry. Ms Dan is currently Acting University Archivist at the Australian National University.