Guidelines for Managing Electronic Documents in Australian Government Agencies - Legislative requirements

Copyright © Commonwealth of Australia 1995

1. LEGISLATIVE REQUIREMENTS
   1. FORMAL REQUIREMENTS
   2. AUDIT ACT 1901 (AS AMENDED), FINANCE REGULATIONS AND FINANCE DIRECTIONS
   3. CRIMES ACT 1914 (AS AMENDED)
   4. PUBLIC SERVICE ACT 1922 (AS AMENDED) AND REGULATIONS
   5. COPYRIGHT ACT 1968 (AS AMENDED)
   6. FREEDOM OF INFORMATION ACT 1982 (AS AMENDED)
   7. ARCHIVES ACT 1983 (AS AMENDED)
   8. PRIVACY ACT 1988 (AS AMENDED)
   9. EVIDENCE ACT 19?? (AS AMENDED)
   10. RELATED LEGISLATION

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Legislative requirements

FORMAL REQUIREMENTS

Authorised users in Commonwealth agencies must comply with legal obligations in relation to the protection of data and privacy pursuant to their own enabling legislation, and compliance with appropriate provisions contained in the following Acts:

• Audit Act 1901
• Crimes Act 1914
• Public Service Act 1922
• Copyright Act 1968
• Freedom of Information Act 1982
• Archives Act 1983
• Privacy Act 1988
• Evidence Act 19. . . . . . .

Provisions of the above Acts and associated Regulations relating to the management of Government records, apply equally to electronic storage, electronic transmission, magnetic media, optical media, print-outs, microfiche and/or other means of storing or transmitting client information.

AUDIT ACT 1901 (AS AMENDED), FINANCE REGULATIONS AND FINANCE DIRECTIONS

It is the responsibility of all departments and agencies (that are subject to the provisions of the Audit Act ?) to comply with the Department of Finance Directions 34(24) and 34(24A). Agencies are required inter alia to make a formal record of expenditure decisions for the purposes of accountability and audit.

CRIMES ACT 1914 (AS AMENDED)

The Crimes legislation amendment Act further strengthened the Crimes Act concerning the protection of the confidentiality accorded certain classes of documents and the public disclosure of information contained in those documents.

PUBLIC SERVICE ACT 1922 (AS AMENDED) AND REGULATIONS

The public Service Act and Regulations provide the fundamental framework for the Guidelines on official conduct of Commonwealth Public Servants. These establish standards of conduct and accountability for the performance of official duties including the management of information acquired or created in support of Commonwealth functions. In conjunction with the Crimes Act they provide the basis for disciplinary action in cases where performance standards are not observed or misconduct occurs.

COPYRIGHT ACT 1968 (AS AMENDED)

FREEDOM OF INFORMATION ACT 1982 (AS AMENDED)

The Freedom of Information Act gives the public a right to:

• access documents held by Commonwealth ministers, their departments, statutory authorities and other agencies;
• ask for personal information to be changed or annotated; and
• appeal against a decision not to grant access to a document, or to amend or annotate a personal record. The Act specifies certain types of exempt documents. Generally they are those which must be kept confidential to protect essential public interests, personal or business information.

Just as paper copies of documents may be requested under the FOI legislation, electronic documents may be similarly requested. To be able to locate electronic documents it is preferable that all information, irrespective of medium, is managed in a consistent way, and information is stored in a structure that closely matches current records management practices.

ARCHIVES ACT 1983 (AS AMENDED

The Archives Act 1983 sets out comprehensive arrangements for dealing with Commonwealth records and establishes the Australian Archives as an organisation. The Archives Act sets out basic principles to ensure record keeping is both efficient and accountable, and describes actions which must be taken by Commonwealth agencies to retain, destroy, store or otherwise deal with records. As well as encouraging efficiency for the short term, the Act places a wider responsibility on government agencies to protect records, especially those of a long term or permanent value, which must be preserved for future access by the agency, the Government and members of the public.

The Act describes the functions of Australian Archives and its roles and responsibilities :

• it defines Australian Archives' role in the preservation and management of the Commonwealth's records;
• it establishes the fundamental right of public access to Commonwealth records
• over 30 years old;
• it defines the responsibilities of the Commonwealth with regard to record
• retention, noting that records may only be destroyed :
  • as required by law
  • in accordance with current Australian Archives' approved Disposal Authorities
  • in accordance with a normal administrative practices approved by the Australian Archives; and
• it requires Archives to encourage and facilitate the use of the archival resources of the Commonwealth.

The Archives Act 1983 imposes statutory obligations on all government departments for the management of their records. He Act empowers the Australian Archives to control the disposal of Commonwealth records to ensure:

• efficient and economical record keeping in he Commonwealth Government by the prompt destruction of records no longer needed for legal, fiscal, administrative or other reasons; and
• identification and preservation of those records which for similar reasons must be kept permanently.

Strict controls are imposed on the management of Commonwealth records throughout their life cycle. Under the Act it is illegal to destroy or otherwise dispose of a record, to transfer custody or ownership of a record or to damage or alter a record unless these actions are:

• required by law;
• authorised by the Australian Archives; or
• a normal administrative practice.

The Act permits normal administrative practices involving disposal, alteration or transfer of Commonwealth records, as long as these do not undermine the proper preservation of Commonwealth records or endanger valuable information.

PRIVACY ACT 1988 (AS AMENDED)

The Privacy Act serves two broad purposes. It protects personal information which may have been collected by a Commonwealth agency and provides for the security and confidentiality of tax file numbers. The information privacy principles in section 14 of the Act require that any personal information contained in files be:

• accurate, up to date, complete and not misleading;
• used only for a purpose to which the information is relevant; and
• not disclosed to another person, body or agency unless an exception is applicable.

EVIDENCE ACT 19?? (AS AMENDED)

To be admissible as evidence, a record must be :

• authentic;
• complete and accurate; and
• logically sequenced and arranged.

Just as dates and times on facsimiles and electronic mail are not accepted without corroboration, electronic documents are similarly considered. That is, while a signed hard-copy of a document may be accepted, an electronic version of the same document may not be accepted without the submission of a statutory declaration (unless the other party agrees).

It is up to the presenters of the document to the court to prove the document existed at the date and time claimed.

The production of the document, in printed form, may require the retention of any pre- printed stationary or electronic inclusions (eg letterheads) in use at the time of the production of the original document.

RECOMMENDED ACTION

RELATED LEGISLATION

Other Commonwealth legislation requires Commonwealth agencies to have effective records management procedures in place. Such legislation includes the Ombudsman’s Act 1976, the Administrative Appeals Act 1975 and the Administrative decisions (Judicial Review) Act 1977. Such legislation provides fundamental rights of appeal concerning public access to, or the outcome of, the decision making process of Government departments and agencies.