The Senate

Second Reading Speech

Senator Faulkner

Senator Faulkner (Special Minister of State and Cabinet Secretary)

I table the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted

ARCHIVES AMENDMENT BILL 2008

The Archives Amendment Bill 2008 (the Bill) proposes changes to the Archives Act 1983 (the Act) that will implement certain recommendations of the Australian Law Reform Commission's Report number 85, 'Australia's Federal Record: A Review of the Archives Act 1983'. A majority of the recommendations have already been implemented administratively.

The Bill inserts an objects clause which confirms the role of the National Archives of Australia (the Archives) as identifying and preserving the archival resources of the Commonwealth and providing for their access by the public. The clause also acknowledges the Archives' role in overseeing Commonwealth recordkeeping by determining standards and providing advice to Commonwealth institutions.

This Bill recognises the fact that there can be compelling reasons why archival records should be retained by their agency of origin, or in some other appropriate place. For example, records may be created or accessed through particular technologies not available at a central archives, or, similarly, specialised skills may be required to retrieve, interpret or manage data. For this reason, the Bill introduces the concept that archival records can be considered to be in the care of the Archives, and therefore subject to the provisions that apply to all archival material, even when they are not in the physical custody of the Archives.

Accordingly, the Bill amends the definition of material of the Archives, removing references to records or other archival material being in the custody of the Archives and replacing them with references to being in the care of the Archives.

The Bill also deals with the nature of the arrangements which are to be put in place where records in the care of the Archives are in the custody of others. Importantly, it provides that such records, if in the open access period, are to be available for public inspection. The arrangements must also provide for the protection and maintenance of the records, for inspection by the Archives, for access by institutions as required and for the records to be transferred to the custody of the Archives if so directed by the Director-General of the Archives.

In the 25 years since the Act was drafted, emerging technologies have dramatically changed the way in which affairs of government are transacted and information is recorded. While the Act attempted to allow for the electronic creation, capture and management of records, it did so in a very format specific way. The Bill reflects technological developments and provides for further advances by substituting a new definition of a record as a document or an object in any form that has been kept for the information it contains or its connection with any event, person, circumstance or thing. The new definition also gives legislative authority to a policy direction issued by the Archives in 1995 that accorded the same status to electronic records as to paper records.

As the new definition of a record includes objects, the provision within the Act giving the Minister responsible for the Archives the power to declare an object that is Commonwealth property to be an object of archival significance would become obsolete, and will thus be removed, when the changes proposed in this Bill are enacted.

The Bill inserts a provision such that the Director-General of the Archives may determine that a record or other material is part of the archival resources of the Commonwealth. This formalises existing administrative arrangements for identifying records as of archival value and complements existing provisions within the Act whereby the Archives can give permissions relating to the handling of Commonwealth records.

The earliest possible transfer of archival resources enables the Archives to determine conservation requirements before records begin to deteriorate. This is particularly important in the case of electronic records so that preservation measures can be taken before changes in software and data formats render records inaccessible. The Bill therefore requires that records identified as being part of the archival resources of the Commonwealth be transferred to the care of the Archives as soon as practicable after they are no longer required to be readily available for the business purposes of the relevant agency, but in any event, within 25 years of their creation.

While a key responsibility of the Archives is the identification and preservation of records of archival value, the Archives is not the most appropriate repository for all archival resources. The Bill therefore provides the Archives with the power to decline to accept the care of records that are not part of the archival resources of the Commonwealth. Where such records are currently in the custody of the Archives, records may be returned to institutions or their successors only in accordance with arrangements agreed between the institution and the Archives.

The changes to the Archives Act 1983 proposed by this Bill, while relatively minor, are an important step towards improving government recordkeeping and public access arrangements. In introducing the Archives Amendment Bill 2008, the Government sets in motion a process of reviewing and modernising the Archives Act 1983 to enhance the effectiveness and efficiency of the operations of the National Archives of Australia.