Legislative Requirements

Records and information professionals charged with the keeping of State records are required to be aware of a wide range of legislative issues. A number of Western Australian Acts include provisions relating to the keeping and management of records generated by State and local government agencies.

The State Records Act 2000 is the most significant piece of legislation affecting the management of State records.

The State Records Act 2000

The State Records Act 2000 (the Act) and the accompanying State Records (Consequential Provisions) Act were proclaimed on 30 November 2001. The Act replaced the archives and recordkeeping aspects of the Library Board of Western Australia Act 1951-1983.

The Act was the result of many years of hard work and commitment by current and former members of the State Records Office (and the former State Archives), the Library Board of Western Australia, the Parliamentary Counsel's Office and the recordkeeping community of Western Australia.

The Act strengthens public sector accountability through effective recordkeeping; provides for standard-setting, monitoring and investigative functions reportable directly to Parliament; and takes into account technological and administrative trends in recordkeeping.

Under the Act a State record is defined as any record of information (in any form) created, received or maintained by a government organisation or parliamentary department in the course of conducting its business activities. State records may be in any format on which information can be stored, including maps, plans, photographs, films, magnetic and optical media.

The Act provides for an independent State Records Commission (the Commission) with standard-setting, auditing and reporting responsibilities. The State Records Commission is accountable directly to Parliament. The four members of the Commission are the Auditor General, the Information Commissioner, the Ombudsman, and an appointee with recordkeeping experience from outside Government.

A cornerstone of the legislation is an instrument of accountability called the "recordkeeping plan". Every State organisation is to have and operate under an approved Recordkeeping Plan, which is to set out the matters about which records are to be created by the organisation, how those records are to be managed, and for how long records are to be kept. Recordkeeping Plans will be submitted to the State Records Commission for approval.

The Act formalises the position and role of Director of State Records, known as the State Archivist and Executive Director State Records. Under the leadership of the Executive Director, the State Records Office functions as the operational arm of the State Records Commission. The Executive Director, through the State Records Office, provides advice, assistance and training for government organisations on recordkeeping matters, including the development of and compliance with their recordkeeping plans. The Executive Director advises and assists the Commission and reports to the Commission on the operation of the Act, including any alleged breaches.

The online version of the State Records Act 2000 can be viewed at the State Law Publisher website.

Other Relevant Legislation

In addition to the requirements of the State Records Act 2000, State and local government organisations should also be mindful of other legislation applicable to the proper management of their records. In particular, the following Western Australian Acts may be of interest:

Corruption and Crime Commission Act 2003
Under section 28 of this Act, public sector agencies are obligated to notify the Corruption and Crime Commission of suspected misconduct. In the context of the State Records Act 2000 this may constitute activity that contravenes the requirements of an organisation's Recordkeeping Plan, such as the destruction of records where not in accordance with an approved disposal authority.

Criminal Code Act 1913  
Under the Criminal Code Act 1913 (Section 85) any public officer found guilty of falsifying records by making false entries, omitting to make an entry, damage, or destruction, can incur penalties, including imprisonment.

Electronic Transactions Act 2011
This Act includes provisions relating to the conduct and legal validity of electronic transactions that take place wholly or partly by electronic communication.

Evidence Act 1906
The Evidence Act includes requirements for records where they are produced as evidence, including implications for the destruction of records and the requirements for creating acceptable reproductions. In 2000 this Act was amended to expand upon the best evidence provisions to facilitate the admission of documentary evidence created using modern information technology.

Financial Management Act 2006
This Act includes requirements for the management of financial and accounting records, including specific requirements outlined in Treasurer's Instructions.

Freedom of Information Act 1992
The Freedom of Information (FOI) legislation prescribes rights and procedures for access to documents held by Government agencies and includes recordkeeping requirements. Once a request for access under the FOI Act has been lodged all files relevant to that request, regardless of whether they are due for destruction, must be identified and preserved until completion of actions on the request and any subsequent reviews by the Information Commissioner or the Supreme Court.

Limitation Act 1935 and Limitation Act 2005
Limitations have been set by law on periods within which court actions can be initiated. Once the period has expired, the party sustaining loss or injury cannot sue, and the party causing loss or injury is no longer held accountable. It is therefore expedient for organisations to select and keep those records that might be useful in the event of having to prosecute or defend an action, for the period of limitation.

Local Government Act 1995
This Act stipulates that a Chief Executive Officer of a local government authority must ensure the proper keeping of records and documents reflecting the operations of the local government. 

Public Sector Management Act 1994
The Public Sector Management Act outlines the functions of Chief Executive Officers of public sector agencies which include responsibility, subject to the State Records Act 2000, for ensuring that the organisation keeps proper records.

All current legislation can viewed at the State Law Publisher website.

Executive Directives

Periodically, directives are issued by the Premier or Ministers which may have implications for the management of State records. The following executive directive currently in force affects the recordkeeping functions of State and local government agencies.

Treasurer's Instruction 804

The Treasurer's Instructions are a series of directives issued by the Treasurer to accompany the Financial Management Act 2006. Treasurer's Instruction 804 stipulates the current policy for the management of financial and accounting records in State government agencies. This Treasurer's Instruction should be applied in conjunction with the General Disposal Authority for State Government Information.

Further Information

If you require further information on legislation, that is not covered within this section please contact the State Records Office on (08) 9427 3600 or via email at sro@sro.wa.gov.au.

 

Last updated 10 September 2014