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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
State Records Bill 1998
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Authorized applicant 6
5. Act binds Crown 6
6. Application to records created or received before
commencement 6
7. Application to State organizations 7
8. Application to former State organizations 7
9. Effect on other enactments 8
10 . Person responsible for State organization's
obligations 8
Part 2 -- Record keeping plans
Division 1 -- General
11 . Content of plans 9
12 . Effect of plans 10
page i
33--1
State Records Bill 1998
Contents
Division 2 -- Plans of State organizations other than
those to which Division 3 applies
13 . Application 11
14 . State organizations to have plans 11
15 . Existing organizations to lodge draft plans 11
16 . New organizations to lodge draft plans 11
17 . Director to report on draft plans 12
18 . Commission may approve draft plans 12
19 . Amending plans 12
Division 3 -- Plans of the Commission, the State
Records Office and Schedule 3 organizations
20 . Commission to have plan 12
21 . State Records Office to have plan 13
22 . Schedule 3 organizations to have plans 14
Division 4 -- Reviews of and periodic reports about
plans
23 . Review of plans 15
24 . State organizations to report periodically 15
25 . Reports to be given to Parliament 16
Part 3 -- Control of State records
26 . Control of records that are not State archives 17
27 . State archives to be transferred to State archives
collection 17
28 . Contracting-out of record keeping not prevented 18
Part 4 -- State archives
Division 1 -- General
29 . State archives identified 19
30 . State archives collection 19
31 . Director has control of State archives collection 19
page ii
State Records Bill 1998
Contents
Division 2 -- Restricted access archives
32 . Restricted access archives identified 20
33 . When archives cease to be restricted access archives 20
Division 3 -- Archives keeping plan
34 . Director to have plan 21
35 . Approval of plan 22
36 . Plan to be reviewed 22
37 . Periodic report about plan 23
Division 4 -- Destruction of archives
38 . Destruction of archives 23
Part 5 -- Access to State records
39 . Records that are not State archives 24
40 . State archives that are not restricted access archives 24
41 . Restricted access archives 24
42 . Archives at least 75 years old 25
43 . Archives containing exceptionally sensitive
information 25
44 . Medical etc. information, limited access to 26
45 . Applying for access to State archives 27
46 . State organization to have access to its archives 27
Part 6 -- Recovering State records
47 . Direction to deliver 28
48 . Court action to recover 28
49 . Compensation for recovered records 28
50 . Reciprocal agreements to recover State records 29
51 . No limitation period etc. 29
Part 7 -- State Records Commission
Division 1 -- General
52 . Commission established 30
page iii
State Records Bill 1998
Contents
53 . Membership 30
54 . Provisions about membership and meetings 30
55 . Functions 31
56 . Principles and standards 31
57 . Committees of the Commission 33
58 . Staff 33
59 . Financial matters 34
60 . Annual report to Parliament 34
61 . Special report to Parliament 35
Division 2 -- Relationship with the Minister
62 . Commission to be generally independent 35
63 . Minister to have access to information 36
Division 3 -- Investigative powers
64 . Commission's right of access to State records 36
65 . Commission may request report on record keeping 37
66 . Commission to have powers of special inquirer
under Public Sector Management Act 1994 37
Part 8 -- Administrative matters
67 . Director of State Records 39
68 . Staff 39
69 . State Records Office 39
70 . Director's functions 39
71 . Director's right of access to State records 40
72 . Director's contractual powers 41
Part 9 -- General
73 . Information about Aboriginal Australians 42
74 . Confidentiality 42
75 . Offences 43
76 . Evidential matters 44
77 . Protection from defamation or breach of confidence
actions 45
page iv
State Records Bill 1998
Contents
78 . Protection from criminal actions 46
79 . Protection from personal liability for wrongdoing 46
80 . Crown's rights in respect of State records 46
81 . Regulations 46
Schedule 1 -- State organizations
Schedule 2 -- Organizations that are not State
organizations
Schedule 3 -- Certain State organizations
Schedule 4 -- Provisions applicable to the
Commission
1. Interpretation 52
2. Term of office 52
3. Chairperson 52
4. Meetings 53
5. Conflicts of interest 53
6. Leave of absence 54
7. Remuneration 54
page v
Western Australia
LEGISLATIVE ASSEMBLY
State Records Bill 1998
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 1998
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the State Records Act 1998.
2. Commencement
5 The provisions of this Act come into operation on such day as
is, or days as are respectively, fixed by proclamation.
3. Interpretation
(1) In this Act --
"authorized applicant", in relation to an application to the
10 Commission, means a person authorized under section 4 to
make the application;
"Commission" means the State Records Commission
established by section 52;
"control", in relation to a record, means the responsibility for
15 keeping it but does not include the responsibility for
creating it;
"destroy", in relation to a record, means to deal with the
record --
(a) so that any or all of the information recorded or
20 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;
"Director" means the Director of State Records referred to in
25 section 67;
page 2
State Records Bill 1998
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;
"keep", in relation to a record, has the meaning affected by
subsection (2);
"record" means any record of information however recorded
and includes --
15 (a) any thing on which there is writing or Braille;
(b) a map, plan, diagram or graph;
(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
20 persons qualified to interpret them;
(e) anything from which images, sounds or writings can
be reproduced with or without the aid of anything
else; and
(f) any thing on which information has been stored or
25 recorded, either mechanically, magnetically, or
electronically;
"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
30 for the time being committed by the Governor;
page 3
State Records Bill 1998
Part 1 Preliminary
s. 3
"record keeping plan", in relation to a State organization,
means the record keeping plan that the organization is
required to have under Part 2 as the plan is amended from
time to time under that Part;
5 "restricted access archive" means a State archive to which
access is restricted until it 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 State organization in
10 Schedule 3;
"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 30;
15 "State collecting institution" means --
(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
20 (c) the Western Australian Museum constituted under the
Museum Act 1969;
"State organization" means an organization in Schedule 1 but
not an organization in Schedule 2;
"State organization employee" means --
25 (a) a person who, under the Public Sector Management
Act 1994, is a public service officer of a State
organization; or
(b) a person who is engaged by a State organization,
whether under a contract for services or otherwise;
page 4
State Records Bill 1998
Preliminary Part 1
s. 3
"State record" means a record created or received by --
(a) a State organization; or
(b) a State organization employee in the course of the
employee's work for the organization,
5 but does not include an exempt record;
"State Records Office" means the entity referred to in section
69;
"successor", in relation to a State organization that is abolished
or that ceases to be a State organization, means the State
10 organization (if any) that takes over that organization's
functions;
"unauthorized possession", in relation to a State record, means
possession that is not authorized by any of the following:
(a) the record keeping plan of the State organization that
15 last had possession of, or that has the control of, the
record;
(b) the State organization that last had possession of, or
that has the control of, the record;
(c) the archives keeping plan;
20 (d) the Director;
(e) a written law;
(f) an order or determination of a court or tribunal.
(2) In this Act a reference to keeping records or record keeping
includes a reference --
25 (a) to creating, maintaining, indexing, organizing, storing,
preserving, securing, retaining and managing records;
and
(b) to maintaining, preserving, securing and retaining the
means by which any information on a record can be
30 recovered.
page 5
State Records Bill 1998
Part 1 Preliminary
s. 4
(3) In this Act a State organization's State records are those State
records that the organization has created or received or taken
control of.
(4) In this Act a reference to transferring a record to another person
5 includes a reference to transferring the means of recovering the
record's information to the person.
(5) In this Act the age of a record is to be determined from the date
when it first became a State record.
(6) Notes and examples in this Act are provided to assist
10 understanding and do not form part of the Act.
4. Authorized applicant
If under section 32(2)(b), 33(3), or 43(3) a State organization
could apply to the Commission in relation to a State archive but
the organization has been abolished or has ceased to be a State
15 organization, then the application may be made by --
(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
20 Act 1968 if the former organization was a Royal
Commission; or
(c) the Director in any other case.
5. Act binds Crown
This Act binds the Crown.
25 6. Application to records created or received before
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
page 6
State Records Bill 1998
Preliminary Part 1
s. 7
received by or on behalf of a State organization before then and
notwithstanding that the organization may have been abolished
or ceased to be a State organization.
7. Application to State organizations
5 This Act applies to a State organization unless this Act or
another written law expressly says otherwise.
8. Application to former State organizations
(1) In this section --
"former organization" means a State organization that is
10 abolished or that ceases to be a State organization.
(2) Subject to Part 3, control of a State record kept by a former
organization is to be taken --
(a) if there is only one successor to the former
organization -- by that successor;
15 (b) if there are 2 or more successors to the former
organization -- by the successor that takes over the
function to which the record most closely relates;
(c) if a person that is not a State organization takes over the
function of the former organization to which the record
20 relates -- by that person; or
(d) if the functions of the former organization are not taken
over by any person -- by a State organization
designated by the Minister.
(3) A State organization that takes control of a State record from a
25 former organization must keep that record in accordance with
the former organization's record keeping plan until the
organization's own record keeping plan is amended.
page 7
State Records Bill 1998
Part 1 Preliminary
s. 9
(4) If a person that is not a State organization takes control of a
State record from a former organization --
(a) the person is to be taken to be a State organization for
the purposes of this Act; and
5 (b) the former organization's record keeping plan is to be
taken to be the person's record keeping plan.
(5) This section is subject to any express provision in a written law
about the records of a former organization.
9. Effect on other enactments
10 (1) If a provision in another written law requires a State
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
15 (Custody of Records) Act 1992.
10. Person responsible for State organization's obligations
(1) Where a State organization is not an individual, the individual
responsible for ensuring that a State organization complies with
this Act is the individual who, under the FOI Act, is the
20 principal officer of the organization.
(2) If under the FOI Act a State 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
25 declared by the regulations to be the office responsible.
page 8
State Records Bill 1998
Record keeping plans Part 2
General Division 1
s. 11
Part 2 -- Record keeping plans
Division 1 -- General
11. Content of plans
(1) A record keeping plan is a document in respect of a State
5 organization setting out --
(a) the matters about which records are to be created by the
organization; and
(b) how State records under the organization's control are to
be kept by it.
10 (2) A State organization's record keeping plan must --
(a) comply with principles and standards established by the
Commission under section 56;
(b) ensure that the organization's record keeping properly
and adequately records the performance of the
15 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 State 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 State records that are not
25 State archives; and
(d) the systems to ensure the security of State records and
compliance with the record keeping plan.
Note: "retention period" is defined in section 3.
page 9
State Records Bill 1998
Part 2 Record keeping plans
Division 1 General
s. 12
(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 State record to be reproduced in another form;
5 (b) for the destruction of a State 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.
For example: records in paper form could be microfilmed and
10 the paper form destroyed.
(6) A State 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 27(1); or
15 (b) are to be transferred at a time other than that prescribed
by that section.
12. Effect of plans
A State organization's record keeping plan must be complied
with by --
20 (a) the State organization; and
(b) every State organization employee of the organization in
the course of the employee's work for the organization.
page 10
State Records Bill 1998
Record keeping plans Part 2
Plans of State organizations other than those to which Division 2
Division 3 applies
s. 13
Division 2 -- Plans of State organizations other than those to
which Division 3 applies
13. Application
This Division applies to every State organization other than the
5 Commission, the State Records Office and Schedule 3
organizations.
14. State organizations to have plans
Every State organization must have a record keeping plan that
has been approved by the Commission under section 18.
10 15. Existing organizations to lodge draft plans
(1) A State 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
to prescribe the timing of the progressive introduction after the
15 commencement of this Act of the requirement in subsection (1).
16. New organizations to lodge draft plans
A State organization that is created after this Act commences --
(a) must submit its draft record keeping plan to the Director
within 6 months after its creation and in any event
20 before it is abolished or ceases to be a State
organization; and
(b) must keep records in accordance with principles and
standards established by the Commission under section
56 until the Commission approves its record keeping
25 plan.
page 11
State Records Bill 1998
Part 2 Record keeping plans
Division 3 Plans of the Commission, the State Records Office and
Schedule 3 organizations
s. 17
17. Director to report on draft plans
(1) The Director must prepare a report for the Commission about
every draft record keeping plan submitted to the Director.
(2) The Director's report must include a recommendation as to
5 whether or not the draft plan should be approved by the
Commission.
(3) The Director must submit the draft plan and his or her report
about it to the Commission.
18. Commission may approve draft plans
10 (1) The Commission may approve or refuse to approve a State
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 State organization concerned.
(3) If a State organization's draft plan is refused approval the
15 organization must submit another draft plan to the Director
within such time as the Commission directs.
19. Amending plans
(1) If a State organization wants to amend its record keeping plan it
must submit a draft amendment to the Director.
20 (2) Sections 17 and 18 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
20. Commission to have plan
25 (1) The Commission must have a record keeping plan that has been
approved by the Minister under this section.
page 12
State Records Bill 1998
Record keeping plans Part 2
Plans of the Commission, the State Records Office and Division 3
Schedule 3 organizations
s. 21
(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.
(4) If the Minister refuses to approve the draft plan the Minister
5 must give reasons for doing so to the Commission.
(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 the Commission's record
10 keeping plan it must submit a draft amendment to the Minister
and subsections (3) to (5) apply as if the draft amendment were
a draft plan.
21. State Records Office to have plan
(1) The State Records Office must have a record keeping plan that
15 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
20 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.
25 (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.
page 13
State Records Bill 1998
Part 2 Record keeping plans
Division 3 Plans of the Commission, the State Records Office and
Schedule 3 organizations
s. 22
(7) If the Director wants to amend the State Records Office's record
keeping plan it must submit a draft amendment to the
Commission and subsections (4) to (6) apply as if the draft
amendment were a draft plan.
5 22. 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.
(2) A Schedule 3 organization must submit its draft record keeping
10 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).
(4) The relevant Minister may approve or refuse to approve the
15 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.
(6) If the organization's draft plan is refused approval it must
20 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.
(8) If a Schedule 3 organization wants to amend its record keeping
25 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.
page 14
State Records Bill 1998
Record keeping plans Part 2
Reviews of and periodic reports about plans Division 4
s. 23
Division 4 -- Reviews of and periodic reports about plans
23. Review of plans
(1) A State organization may review its record keeping plan at any
time.
5 (2) A State organization must review its record keeping plan
whenever there is any significant change to the organization's
functions.
(3) The Commission may require a State organization, other than a
Schedule 3 organization, to review its record keeping plan.
10 (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
State organization's record keeping plan and a review of it or
between one review and another.
15 (6) When a State 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.
(7) When a Schedule 3 organization has reviewed its record keeping
plan it must submit a report of the review to its relevant Minister.
20 24. State organizations to report periodically
(1) Every State organization, other than a Schedule 3 organization,
must report in writing to the Commission at such intervals as the
Commission from time to time directs about its record keeping
plan and its compliance with the plan.
25 (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
with the plan.
page 15
State Records Bill 1998
Part 2 Record keeping plans
Division 4 Reviews of and periodic reports about plans
s. 25
25. Reports to be given to Parliament
(1) As soon as practicable after the Commission receives a report
under section 24 it must give a copy to Parliament.
(2) As soon as practicable after a relevant Minister receives a report
5 under section 24 the Minister must give a copy to Parliament.
(3) For the purpose of subsections (1) and (2), section 61(2), with
any necessary changes, applies.
page 16
State Records Bill 1998
Control of State records Part 3
s. 26
Part 3 -- Control of State records
26. 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.
27. State archives to be transferred to State archives collection
(1) Unless its record keeping plan says otherwise, a State
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 State 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 17
State Records Bill 1998
Part 3 Control of State records
s. 28
(7) This section does not apply to a State organization until a record
keeping plan has been approved under Part 2 in respect of it.
28. Contracting-out of record keeping not prevented
(1) This Part does not prevent a State organization from entering
5 into a contract or arrangement with a person for the person to
perform any aspect of record keeping for the organization.
(2) If a State organization enters into such a contract or
arrangement with a person that is not a State organization it
must notify the Director accordingly.
10 (3) If a State organization enters into such a contract or
arrangement with a person, any State record subject to the
contract or arrangement --
(a) remains under the control of the organization and
control of it is not to be taken as having been transferred
15 to the person; and
(b) remains subject to this Act and the organization's record
keeping plan.
page 18
State Records Bill 1998
State archives Part 4
General Division 1
s. 29
Part 4 -- State archives
Division 1 -- General
29. 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.
30. 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 27; and
15 (c) records that have been transferred to the collection under
another written law.
31. Director has control of State archives collection
(1) The Director has control of the State archives that are in the
State archives collection.
20 (2) The Director must keep the State archives that are in the State
archives collection in accordance with the archives keeping
plan.
page 19
State Records Bill 1998
Part 4 State archives
Division 2 Restricted access archives
s. 32
Division 2 -- Restricted access archives
32. Restricted access archives identified
(1) A State archive that is not in the State archives collection is a
restricted access archive if the record keeping plan of the State
5 organization that has control of it says it is.
(2) A State archive 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
State organization, the organization's record keeping
10 plan said it was; or
(b) after it is transferred to the State archives collection by a
State organization, the Commission, on an application
by the State organization or by an authorized applicant,
directs that it is a restricted access archive.
15 (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.
(4) If under subsection (2)(b) the Commission directs that a State
archive is a restricted access archive, it must set the age at
20 which the archive will cease to be a restricted access archive.
(5) The Commission must review a decision under subsection (2)
that a State archive is a restricted access archive at least once in
the 5 years after the decision and, until the archive ceases to be
a restricted access archive, at least once in the 5 years after any
25 review.
33. 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 20
State Records Bill 1998
State archives Part 4
Archives keeping plan Division 3
s. 34
archive at the age stated in respect of that archive by the record
keeping plan of the State organization that has control of it.
(2) A State archive that is a restricted access archive and that is in
the State archives collection ceases to be a restricted access
5 archive --
(a) at the age set for that archive by the record keeping plan
of the State organization that transferred it to the
collection at the time it was transferred; or
(b) the age set by the Commission under section 32 or under
10 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
the State organization that transferred the archive to the
15 collection or by an authorized applicant.
(4) On such an application the Commission may change the age at
which the restricted access archives ceases to be so.
(5) The Director must give effect to any direction made by the
Commission.
20 Division 3 -- Archives keeping plan
34. Director to have plan
(1) The Director must have an archives keeping plan that is
approved by the Commission under section 35.
(2) The archives keeping plan must set out how State archives in
25 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 21
State Records Bill 1998
Part 4 State archives
Division 3 Archives keeping plan
s. 35
(b) for the destruction of a State archive if a reproduction of
it is being kept.
For example: archives in paper form could be microfilmed and
the paper form destroyed.
5 35. Approval of plan
(1) The Director must submit a draft archives keeping plan to the
Commission within 12 months after this section commences.
(2) The Commission may approve or refuse to approve the draft
plan.
10 (3) If the Commission refuses to approve the draft plan it must give
its reasons for doing so to the Director.
(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
15 Director must submit a draft amendment to the Commission and
subsections (2) to (4) apply as if the draft amendment were a
draft plan.
36. Plan to be reviewed
(1) The Director may review the archives keeping plan at any time.
20 (2) The Commission may require the Director to review the
archives keeping plan.
(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.
25 (4) When the Director has reviewed the archives keeping plan the
Director must submit a report of the review to the Commission.
page 22
State Records Bill 1998
State archives Part 4
Destruction of archives Division 4
s. 37
37. 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.
5 (2) For the purpose of subsection (1), sections 25(1) and 61(2), with
any necessary changes, apply.
Division 4 -- Destruction of archives
38. Destruction of archives
(1) In this section --
10 "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
Commission for permission to destroy it.
15 (3) The Commission is to refer such an application --
(a) to the State organization that had control of the archive
before it was transferred to the State archives collection
unless that organization has been abolished or has
ceased to exist; and
20 (b) to any other State organization that in the Commission's
opinion has an interest in the archive concerned.
(4) An organization to which an application is referred may make a
submission to the Commission about the application.
(5) After considering the application and any submission received
25 about it, the Commission may grant or refuse it and the Director
is to give effect to the decision accordingly.
page 23
State Records Bill 1998
Part 5 Access to State records
s. 39
Part 5 -- Access to State records
39. Records that are not State archives
If a State record is not a State archive, any right that a person
may have to be given access to it is to be determined under the
5 FOI Act.
40. State archives that are not restricted access archives
(1) This section applies to a State archive that is not a restricted
access archive.
(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 44
and any express provision in another written law, and the FOI
Act does not apply to or in relation to it.
41. 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 State organization to which the application must be
page 24
State Records Bill 1998
Access to State records Part 5
s. 42
made has been abolished or has ceased to be a State
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 42. Archives at least 75 years old
(1) This section applies to a State archive 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 43 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
44 and any express provision in another written law, and the
20 FOI Act does not apply to or in relation to it.
43. Archives containing exceptionally sensitive information
(1) If the Commission is satisfied on an application made under
subsection (3) that a State archive contains information of such
exceptional sensitivity that there should not be a right to be
25 given access to it under section 42, 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
will cease to be an exceptionally sensitive archive.
page 25
State Records Bill 1998
Part 5 Access to State records
s. 44
(3) An application may be made to the Commission for such a
direction by the State 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 44 and any express provision in another written law, and
the FOI Act does not apply to or in relation to it.
44. Medical etc. information, limited access to
(1) A person is not entitled under section 40(3), 42(2) or 43(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 26
State Records Bill 1998
Access to State records Part 5
s. 45
45. 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 40(3), 42(2) or 43(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 State 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.
46. State organization to have access to its archives
15 (1) A State 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 27
State Records Bill 1998
Part 6 Recovering State records
s. 47
Part 6 -- Recovering State records
47. Direction to deliver
(1) If the Director believes that a person has unauthorized
possession of a State record (whether or not ownership of the
5 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.
48. Court action to recover
(1) If a person does not comply with a direction made under section
47, the Director may apply to the District Court for an order that
15 the person deliver the State 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.
49. Compensation for recovered records
(1) A person who loses possession of a State record as a result of a
direction given under section 47 or an order or warrant issued
under section 48 may apply to the Minister for compensation for
25 being deprived of the record.
(2) On such an application the Minister may pay the person such
compensation as the Minister thinks fit.
page 28
State Records Bill 1998
Recovering State records Part 6
s. 50
50. Reciprocal agreements to recover State 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 State 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 State record and to give the record to the
15 Director.
(3) Sections 47 and 48, with any necessary changes, apply for the
purpose of the Director taking action to recover a record for a
reciprocal person.
51. No limitation period etc.
20 (1) The Crown's and the Director's right to take legal action to
recover a State 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 State record otherwise than under this Part is not
25 limited by this Part.
page 29
State Records Bill 1998
Part 7 State Records Commission
Division 1 General
s. 52
Part 7 -- State Records Commission
Division 1 -- General
52. Commission established
A body called the State Records Commission is established.
5 53. Membership
The Commission is to consist of 3 members appointed by the
Governor:
(a) a person --
(i) who is qualified to be appointed as a judge of the
10 Supreme Court, or would be so qualified but for
the fact that he or she has attained the age
referred to in section 3 of the Judges' Retirement
Act 1937; or
(ii) who has held office as a judge of the Supreme
15 Court or the District Court, whether or not he or
she has attained that age;
(b) a member of the academic staff of a university in the
State; and
(c) a person who has retired as a public service officer (as
20 defined in the Public Sector Management Act 1994).
54. Provisions about membership and meetings
Schedule 4 has effect.
page 30
State Records Bill 1998
State Records Commission Part 7
General Division 1
s. 55
55. Functions
(1) The Commission's functions are as set out in this Act and
include --
(a) monitoring the operation of and compliance with this
5 Act; and
(b) monitoring compliance by State 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
10 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, State records are accessible to
the public.
15 56. Principles and standards
(1) The Commission is to establish principles and standards --
(a) governing record keeping by State organizations;
(b) for determining which State records should be State
archives;
20 (c) for determining which State archives should be
restricted access archives and the ages at which they
should cease to be a restricted access archive;
(d) for determining which State archives should not be
transferred to the State archives collection under section
25 27(1); and
(e) for determining the retention periods for State records
that are not to be State archives.
page 31
State Records Bill 1998
Part 7 State Records Commission
Division 1 General
s. 56
(2) Before establishing, amending or repealing the principles and
standards, the Commission is to --
(a) consult such people as the Commission considers
desirable and practical to consult; and
5 (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.
(3) The principles and standards --
10 (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
(c) may be amended or repealed by the Commission by
15 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.
(5) Subject to subsection (6), principles or standards have in
20 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,
and deciding, whether or not a principle or standard or any of its
25 provisions --
(a) has been validly established;
(b) is inconsistent with a provision of this Act;
page 32
State Records Bill 1998
State Records Commission Part 7
General Division 1
s. 57
(c) is unrelated to the power conferred by this section to
establish principles and standards,
as if the principle or standard or its provision were a regulation
within the meaning of the Interpretation Act 1984.
5 57. 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;
(b) the retention periods for those State records that are not
10 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.
(3) The Commission may establish other committees to assist it in
15 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
conduct of business at those meetings is to be as determined by
20 the Commission or (subject to any determination of the
Commission) by the committee.
58. Staff
Officers may be appointed or made available under Part 3 of the
Public Sector Management Act 1994 to enable the Commission
25 to perform its functions.
page 33
State Records Bill 1998
Part 7 State Records Commission
Division 1 General
s. 59
59. Financial matters
(1) An account called the "State Records Commission Account" is
to be established at either --
(a) the Treasury as part of the Trust Fund referred to in
5 section 9 of the Financial Administration and Audit
Act 1985; or
(b) with the approval of the Treasurer, at a bank (as defined
in section 3 of that Act).
(2) The Account is to be credited with --
10 (a) money from time to time appropriated by Parliament for
the purposes of the Commission; and
(b) any other money that is lawfully paid to the
Commission.
(3) The Account is to be charged with --
15 (a) the remuneration and allowances payable to the
Commission's members and officers; and
(b) the expenses incurred by the Commission in performing
its functions.
(4) The provisions of the Financial Administration and Audit
20 Act 1985 regulating the financial administration, audit and
reporting of statutory authorities apply to and in respect of the
Commission and its operations.
60. Annual report to Parliament
The annual report of the Commission required under
25 Division 14 of Part II of the Financial Administration and Audit
Act 1985 is also to report on the operation of this Act and on
any legislative or administrative changes that, in the
Commission's view, could be made to help the objects of the
Act to be achieved.
page 34
State Records Bill 1998
State Records Commission Part 7
Relationship with the Minister Division 2
s. 61
61. Special report to Parliament
(1) In addition to its annual report the Commission may at any time
submit a written report to Parliament about a contravention of
this Act by a State organization.
5 (2) Such a report is to be given to the Speaker of the Legislative
Assembly and to the President of the Legislative Council who
respectively must cause a copy of it to be laid before the
Legislative Assembly and the Legislative Council within 15
sitting days after the report is received.
10 (3) 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
62. Commission to be generally independent
(1) The Commission is not subject to direction by the Minister or
15 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
followed in the performance of any of the Commission's
20 functions.
(3) A direction may not be issued under subsection (2) in respect of
a particular State record or a particular State organization.
(4) Every direction under this section must be in writing and the
text of it must be included in the Commission's annual report
25 under section 60.
page 35
State Records Bill 1998
Part 7 State Records Commission
Division 3 Investigative powers
s. 63
63. Minister to have access to information
(1) The Minister is entitled --
(a) to have information in the possession of the
Commission; and
5 (b) where the information is in or on a record, to have, and
make and retain copies of, that record.
(2) For the purposes of subsection (1) the Minister may --
(a) request the Commission to furnish information to the
Minister;
10 (b) request the Commission to give the Minister access to
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.
15 (3) The Commission shall comply with a request made under
subsection (2) and make its staff and facilities available to the
Minister for the purposes of paragraph (c) of that subsection.
(4) In this section --
"information" means information specified, or of a description
20 specified, by the Minister that relates to the functions of the
Commission.
Division 3 -- Investigative powers
64. Commission's right of access to State records
(1) A member of the Commission or a member of the
25 Commission's staff authorized by the Commission is entitled to
have access to a State organization's State records for the
purposes of performing the Commission's functions.
page 36
State Records Bill 1998
State Records Commission Part 7
Investigative powers Division 3
s. 65
(2) Nothing in this section entitles a member of the Commission or
a member of the Commission's staff to have access to the State
records of a Schedule 3 organization.
65. Commission may request report on record keeping
5 (1) The Commission may at any time request a State organization,
other than a Schedule 3 organization, to report to it about the
organization's record keeping or an aspect of the organization's
record keeping.
(2) The Commission may at any time request a Schedule 3
10 organization to report to its relevant Minister about the
organization's record keeping or an aspect of the organization's
record keeping.
(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
15 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.
(5) A relevant Minister to whom a report is provided by a
Schedule 3 organization must give to the Commission --
20 (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
notice of the compliance or failure to comply.
66. Commission to have powers of special inquirer under Public
25 Sector Management Act 1994
(1) For the purpose of performing its functions, the Commission
may investigate the record keeping of any State organization,
other than a Schedule 3 organization.
page 37
State Records Bill 1998
Part 7 State Records Commission
Division 3 Investigative powers
s. 66
(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
Management Act 1994 and those provisions apply to and in
5 relation to --
(a) the Commission or that person as if it or the person were
a special inquirer under that Act; and
(b) the investigation as if it were a special inquiry under that
Act.
10 (3) A person authorized by the Commission under subsection (2) to
make an investigation must --
(a) within such period as the Commission requires, prepare
a report on the conduct, findings and any
recommendations of the investigation; and
15 (b) immediately after preparing the report, provide the
Commission with a copy of it.
page 38
State Records Bill 1998
Administrative matters Part 8
s. 67
Part 8 -- Administrative matters
67. 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.
68. 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.
69. State Records Office
The entity consisting of the Director and the officers referred to
in section 68 is to be called the State Records Office or by such
15 other name as the Minister from time to time directs.
70. Director's functions
(1) In addition to the Director's other functions under this Act, the
Director's functions are --
(a) to advise State organizations on record keeping and on
20 training their staff in record keeping and to assist in such
matters;
(b) to advise State 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 39
State Records Bill 1998
Part 8 Administrative matters
s. 71
(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 the operation of and
10 compliance by State organizations with Part 2.
(2) 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
delegation.
15 (3) Performance of a function by a delegate is to be treated as
performance by the Director.
71. Director's right of access to State records
(1) The Director is entitled to have access to the State records of a
State organization, other than a Schedule 3 organization, for the
20 purposes of monitoring the organization's compliance with its
record keeping plan and this Act.
(2) If the relevant Minister of a Schedule 3 organization so
authorizes the Director, the Director is entitled to have access to
the State records of the organization for the purposes of
25 monitoring the organization's compliance with its record
keeping plan and this Act.
(3) State records to which the Director is entitled to access under
subsection (1) or (2) are not documents of the Director for the
purposes of the FOI Act.
page 40
State Records Bill 1998
Administrative matters Part 8
s. 72
72. Director's contractual powers
The Director may enter into a contract or an arrangement with
any person under which --
(a) the person indexes, organizes, stores, preserves, secures,
5 destroys or manages State records;
(b) the State Records Office indexes, organizes, stores,
preserves, secures, destroys or manages records for the
person.
page 41
State Records Bill 1998
Part 9 General
s. 73
Part 9 -- General
73. 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 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 decision:
20 (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.
74. Confidentiality
25 (1) This section applies to a person who is or was:
(a) a member of the Commission, its staff or a committee of
it;
(b) the Director or an officer in the State Records Office.
page 42
State Records Bill 1998
General Part 9
s. 75
(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;
5 (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;
10 (e) in the case of a State record, with the consent of the
State organization that has control of it.
Penalty: $10 000.
75. Offences
(1) A State organization employee who does not keep a State record
15 in accordance with the record keeping plan of the organization,
commits an offence.
(2) A State organization employee who, without lawful authority,
transfers, or who offers to transfer, the possession of a State
record to a person who is not entitled to possession of the
20 record, commits an offence.
(3) A State organization employee who destroys a State record
commits an offence unless the destruction is authorized by the
record keeping plan of the organization.
(4) A person who destroys a State record while the record is the
25 subject of a notice under section 47 or an application made, or
order or warrant issued, under section 48, commits an offence.
page 43
State Records Bill 1998
Part 9 General
s. 76
(5) A person who has unauthorized possession of a State 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),
5 (3), (4) or (5) to prove that the alleged act was done pursuant
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
10 prove that the person had no reasonable cause to suspect that the
record was a State record.
Penalty: $10 000.
76. Evidential matters
(1) A copy of a State organization's record keeping plan certified
15 by a member of the Commission is evidence of the 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
20 same evidential value as the record, in the absence of evidence
to the contrary.
(3) For the purposes of subsection (2) a certificate signed by the
individual who under section 10 is responsible for a State
organization complying with this Act, or by his or her delegate,
25 certifying that a copy of a State record is a reproduction that has
been reproduced under the organization's record keeping plan is
evidence of the certificate's contents.
page 44
State Records Bill 1998
General Part 9
s. 77
(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) This section is in addition to and does not affect the operation of
the Evidence Act 1906.
10 77. 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 State organization or a
State organization employee merely because access is
20 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 document to
a State 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 45
State Records Bill 1998
Part 9 General
s. 78
78. 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.
79. 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.
80. Crown's rights in respect of State records
The fact that a State 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.
81. 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 46
State Records Bill 1998
General Part 9
s. 81
(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 State record for another State
5 organization;
(ii) giving a person or a State organization access to
a State archive in the State archives collection;
(b) provide for matters in connection with giving access to
State archives.
page 47
State Records Bill 1998
Schedule 1 State organizations
Schedule 1 -- State organizations
[s. 3]
1. The Governor.
2. The Governor's Establishment referred to in the Governor's
5 Establishment Act 1992.
3. The Parliament.
4. A department of the staff of Parliament referred to in the Parliamentary
and Electorate Staff (Employment) Act 1992.
5. The Executive Council.
10 6. The Cabinet.
7. A Minister of the Crown.
8. A court or tribunal established or continued under a written law.
9. The Police Force within the meaning of the Police Act 1892.
10. An incorporated or unincorporated body established or continued for a
15 public purpose under a written law.
11. The holder of an office, post or position established or continued for a
public purpose under a written law.
12. A department as defined in the Public Sector Management Act 1994.
13. A local government or regional local government under the Local
20 Government Act 1995.
14. A Royal Commission established under the Royal Commissions Act 1968.
page 48
State Records Bill 1998
State organizations Schedule 1
15. A body or office that is established by the Governor or a Minister.
16. A commission, board, committee or other body established by, or a
person appointed by, the Governor or Parliament or a House of
Parliament or the Government of the State to advise, inquire into or
5 investigate any matter.
page 49
State Records Bill 1998
Schedule 2 Organizations that are not
Schedule 2 -- Organizations that are not State
organizations
[s. 3]
1. The electorate office of a member of Parliament.
5 2. The office of the Leader of the Opposition in the Legislative Council.
3. The office of the Leader of the Opposition in the Legislative Assembly.
4. The office of the person referred to in paragraph (g) of the definition of
"political office holder" in section 3 of the Public Sector Management
Act 1994.
page 50
State Records Bill 1998
Certain State organizations Schedule 3
Schedule 3 -- Certain State 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 51
State Records Bill 1998
Schedule 4 Provisions applicable to the Commission
Schedule 4 -- Provisions applicable to the Commission
[s. 54]
1. Interpretation
In this Schedule --
5 "member" means a member of the Commission.
2. Term of office
(1) The appointment of a person as a member is to specify a term of
appointment of not more than 3 years.
(2) A person who is or was a member may be re-appointed as a member.
10 (3) A member may resign by giving his or her written resignation to the
Minister.
(4) The Governor may terminate the appointment of a member if the
Governor is satisfied that the member --
(a) is an insolvent under administration (as defined in the
15 Corporations Law);
(b) is incompetent, has misbehaved or has neglected his or her
functions as a member;
(c) has been absent, without leave and without reasonable
excuse, from 3 consecutive meetings of the Commission of
20 which the member has had notice;
(d) is unable to perform his or her functions as a member because
of illness.
3. Chairperson
The Commission is to decide which of its members is to be its
25 chairperson.
page 52
State Records Bill 1998
Provisions applicable to the Commission Schedule 4
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) A member who has a material personal interest in a matter involving
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.
20 (2) A disclosure by a member is to be recorded in the minutes of the
meeting.
(3) 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
25 resolves that the member should not be so disqualified.
(4) 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 (3), and must not vote on the matter.
page 53
State Records Bill 1998
Schedule 4 Provisions applicable to the Commission
(5) On an application by the Commission the Minister may issue a
written declaration that this clause does not apply in relation to a
specified matter.
6. Leave of absence
5 The Commission may grant leave of absence to a member on such
terms and conditions as it thinks fit.
7. Remuneration
A member is to be paid such remuneration and travelling and other
allowances as the Minister determines on the recommendation of the
10 Minister for Public Sector Management.
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