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1
Public Records Bill 2001
PUBLIC RECORDS BILL 2001
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
Public records are the corporate memory of Government. They provide
evidence of actions, decisions and communications and are the cornerstone
of Government accountability. Effective recordkeeping systems, practices
and programs support:
· Business continuity;
· Efficient public administration;
· Delivery of Government business and services;
· E-government;
· Accountability; and
· The preservation of Queensland's cultural heritage.
The policy objectives of the Public Records Bill 2001 are to:
(a) Facilitate the documentation, management and preservation of
Government business through full and accurate records,
irrespective of the technological or administrative environment in
which Government business is conducted or the custodial
arrangements for public records; and
(b) Better align access principles for public records in the custody of
Queensland State Archives (QSA) with certain access principles
in the Freedom of Information Act 1992.
Reasons for and achievement of policy objectives
For over a decade, new public records legislation in Queensland has
been proposed by a succession of bodies and governments as the most
appropriate policy instrument for enabling accountability through
improved public recordkeeping.
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Public Records Bill 2001
In 1990 the Public Sector Management Commission (PSMC)
recommended in its Report on the Department of the Premier, Economic
and Trade (Report to Cabinet) that QSA be administered under its own
legislation, with administrative responsibility for QSA to be transferred to
the then Administrative Services Department.
In 1992 the Electoral and Administrative Review Commission (EARC)
in its Review of Archives Legislation also recommended that archives
legislation be separated from libraries legislation. In its 1992 report EARC
noted:
...the proper protection and preservation of public records so
that they may be made available for use by government agencies
and by the public is a matter relating to honesty, impartiality, and
efficiency in the public administration of the State. 1
...the potential for QSA to fulfill its functions will not be realised
unless...an improved legislative framework is put in place to
facilitate the carrying out of those functions....
The Parliamentary Committee on Electoral and Administrative Review
(PCEAR) supported EARC's recommendation for a review of archives
legislation.
The Legal and Constitutional and Administrative Review Committee's
discussion paper on Queensland's Freedom of Information (FOI) regime
published in 2000, and submissions made during its public hearings on FOI
in May 2000, noted that the effectiveness of Queensland's FOI legislation
depended on good recordkeeping practices and obligations to preserve
public records.
The EARC Report contained draft archives legislation which later
formed the basis of the Archives Bill 1995. The Archives Bill 1995 lapsed
when the Legislative Assembly was prorogued at the time of the change of
Government in early 1996. The Public Records Bill 1999 was prepared
and introduced into the Legislative Assembly in late 1999. Although the
Public Records Bill 1999 was largely based on the Archives Bill 1995 it
contained some modifications, including the separation of the link between
Queensland State Archives and the Library Board of Queensland. The
Public Records Bill 1999 lapsed when the Legislative Assembly was
dissolved prior to the announcement of a State election in early 2001.
1 Electoral and Administrative Review Commission, Report on the Review of Archives
Legislation, June 1992, p.1.
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Public Records Bill 2001
The proper management of public records and provision of public access
to public records is critical to government accountability. This Bill
supports the policy objectives of proper recordkeeping and improved
public access to public records. The Bill also seeks to strengthen and
clarify the roles, responsibilities and rights of government and citizens in
relation to public records. Its associated policy framework will enable
public authorities to meet the challenges of a rapidly changing
technological environment.
The Public Records Bill 2001 replaces Part 7 (ss. 56 - 67) of the
Libraries and Archives Act 1988 and the Libraries and Archives
Regulations 1990 with a new statute devoted specifically to the
management of public records.
A consistent and equitable approach for access to Government
information is an essential part of the democratic process. The framework
proposed in this Bill for classifying restricted access periods for records in
QSA's custody has been aligned with the provisions dealing with exempt
matter under the Freedom of Information Act 1992 2. The Bill also
recognises that the sensitivity of most information declines with the
passage of time and that it is appropriate at some point for older records to
be available for public inspection.
New public records legislation has also been made necessary by the
rapidly changing technological and administrative environment in which
public recordkeeping takes place. The Bill provides the legislative
framework for Queensland State Archives to establish policies, standards
and practices reflecting national and international best practice in
electronic recordkeeping. The Bill complements the requirements of the
Electronic Transactions (Queensland) Act 2001 for producing, recording,
retaining and providing access to records generated in the course of
electronic communications3.
Alternatives to the Bill
The major policy alternative to introducing this Bill is to continue to
manage the State's public records under the current Libraries and Archives
Act 1988 and the Libraries and Archives Regulations 1990. Under the
Libraries and Archives Act 1988 the State Archivist would continue to be
2 Section 36 (Cabinet matter), s.37 (Executive Council matter), s. 42 (law enforcement
or public safety), s. 43 (legal proceedings), s. 44 (personal affairs) and s. 46 (matter com-
municated in confidence) of the Freedom of Information Act 1992.
3 Sections 20 - 21 Electronic Transactions (Queensland) Act 2001.
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Public Records Bill 2001
responsible to both the Chief Executive of the Department and the Library
Board of Queensland and would not have a legislative requirement to
develop and implement a comprehensive recordkeeping policy framework
for Queensland public authorities.
The existing archival legislation and regulations would not be aligned to
the access principles in the Freedom of Information Act 1992.
Consultation
Extensive consultation with key stakeholders undertaken over the past
decade demonstrates community and Government support for the
introduction of new public records legislation.
Since 1991 all public authorities, the Criminal Justice Commission, the
Parliamentary Commissioner for Administrative Investigations, the
Information Commissioner, the Governor's Office, the Australian Society
of Archivists, the Records Management Association of Australia, historical
societies, Public Records Access Now (PRAN) and individuals have been
consulted on the development of public records legislation. EARC,
PCEAR and the PSMC consulted widely in the preparation of their reports.
Thirty-nine public submissions4 were received by EARC and 250
participants attended a public seminar on archives legislation held on 9
December 1991. Subsequent to EARC's consultation on the review of the
archives legislation, additional consultation was undertaken in the
development of the successive versions of new public records legislation.
During the development of Information Standard 40: Recordkeeping and
Information Standard 41: Managing Technology-Dependent Records in
2000/2001 public authorities and members of the historical research
community were invited to comment on these standards and the application
of the Libraries and Archives Act 1988, the Libraries and Archives
Regulations 1990 and the Public Records Bill 1999. All State Government
Agencies, Statutory Authorities and Local Governments, the Australian
Society of Archivists, Records Management Association of Australia and
the Professional Historians Association (Qld) were consulted, with over
100 submissions received.
4 This included submissions from 7 Local Authorities, 13 State Government bodies, 3
Federal Government bodies, 8 other organisations and 8 individuals.
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Public Records Bill 2001
Estimated cost of Government implementation
There are no significant additional costs anticipated for Government in
introducing this legislative framework.
Consistency with Fundamental Legislative Principles
The Bill has been drafted with regard to fundamental legislative
principles as defined in s. 4 of the Legislative Standards Act 1992.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 is the short title of the Statute (Public Records Act 2001).
Clause 2 provides that the Bill will commence on a day to be determined
by proclamation. Part 7 will commence on assent.
Clause 3 sets out that the purpose of the Bill is to:
· Provide a regulatory framework for the creation, management,
preservation and use of public records; and
· align access to public records with the principles of the Freedom
of Information Act 1992.
Clause 4 provides for a dictionary in Schedule 2 that defines specific
terms used in the Bill, including commonly used terms such as archives,
archivist, disposal, Ministerial record, public authority and record.
Clause 5 provides that the legislation binds the State of Queensland,
including all public authorities as defined in Schedule 2 - Dictionary.
Entities that are not part of the "State" as defined in s.13 of the Acts
Interpretation Act 1954 but are referenced under the definition of "public
authority" in Schedule 2 - Dictionary (for example, Local Governments)
are also bound by this legislation.
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Public Records Bill 2001
PART 2--PUBLIC RECORDS
Division 1--Preliminary
Clause 6 defines "public record". A public record, including an
ephemeral record or copy of a record, is a record created or received by a
public authority in undertaking its business activities or in the conduct of
its affairs. In this Bill the term "public record' may refer to various levels
of aggregation. For example, it may describe a group of records, series of
records, class of records, an individual record or part of a record.
A public record is any form of recorded information that provides
evidence of the decisions or actions of a public authority in undertaking its
business activities or in the conduct of its affairs. The Bill includes all
records irrespective of the form, the custodial arrangements and the
technology used to generate, manage, preserve and access records.
Copies of a public record and copies of part of a public record are also
regarded as public records. A copy of a record means any reproduction of a
record in any form. For example, a photocopy of a paper document, a
transcript of a sound recording or a duplicate copy of an image are regarded
as copies of a record.
Ministerial records are records generated or received in the
administration of portfolio responsibilities. For the purposes of this Bill,
records generated in the course of undertaking political party and electoral
activities are not regarded as public records.
Under clause 52 certain types of records created by the Governor are
regarded as public records for the purposes of this Bill.
Division 2--Making, managing, keeping and preserving public records
Clause 7 provides that a public authority must make and keep "full and
accurate" records of its activities and have regard to policies, standards and
guidelines issued by the Archivist. The Chief Executive Officer (or
equivalent) of a public authority is responsible and accountable for
ensuring that the public authority complies with these requirements.
Clause 8 requires that each public authority is responsible and
accountable for ensuring that arrangements are made for the proper
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Public Records Bill 2001
management and preservation of any records in its possession. Where a
public record passes outside of the physical custody or physical control of
the responsible public authority5 (e.g. outsourcing or loan arrangements)
the responsible public authority is required to ensure that those records are
adequately managed, preserved and made accessible for as long as those
records are outside its physical custody or physical control. The
responsible public authority is also required to ensure the safe return of
those records to the responsible public authority or Queensland State
Archives (QSA).
Irrespective of the custodial arrangements of public records, the disposal
of public records must be undertaken in accordance with clause 13 of the
Bill.
Where a public authority ceases to exist, either in full or in part, or
ceases to perform a particular function or activity, then the public authority
is responsible for ensuring that the records of that public authority are
either:
(a) Transferred to the successor public authority responsible for the
administration of the functions and activities to which the records
relate (the "responsible public authority" as defined in clause 15).
For example--
· Where a Local Government is merged with another, the
records of each partner in the merger must be transferred to
the new Local Government entity; or
· Where an Administrative Arrangements Order is issued and
a new department is formed to administer particular
functions and legislative instruments, all the records relating
to those functions and legislative instruments must be
transferred to the new department.
(b) Transferred to another public authority as stipulated in a
regulation; or
(c) Disposed of in accordance with a decision of the Archivist as set
out in clauses 13, 26, 27 or 39.
Clause 9 vests the ownership of public records in the State. Where
public records are in the possession or control of a public authority, then
ownership is vested in that public authority. Public records created or
5 As defined in clause 15 of the Bill.
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Public Records Bill 2001
accumulated by a Local Government are owned by that Local Government
or its successor.
Clause 10 requires each public authority to inform the Archivist of all
records older than 25 years in its possession. To implement this
requirement the Archivist will issue to public authorities a broad survey of
record series or classes within 18 months of the commencement of the Act.
A reporting schedule will then be developed and implemented.
The Archivist may take possession of public records, copy public
records or give directions about the storage of records. Public records may
only be removed from QSA under certain conditions. These conditions
include legal discovery and to support current business activities. The
disposal of a record more than 25 years old is permitted where it has been
authorised by the Archivist (Clause 13).
For the purposes of this Bill the term "disposal" refers to the final
decision concerning the fate of records, including the retention of all or part
of a public record, the destruction, deletion, migration or conversion of a
public record or part of a public record; or abandoning, transferring,
donating or selling a public record or part of a public record (Schedule 2 -
Dictionary).
Clause 11 deals with the transfer of public records that are 25 years old
or less. A public authority may transfer the custody of its public records to
QSA. However, in certain circumstances determined by the Archivist (for
example, if there is insufficient storage space at QSA) the transfer of public
records to QSA may be refused. Where records are transferred to QSA and
the responsible public authority demonstrates a reasonable need to access
those records, QSA must make those records available to the public
authority.
Clause 12 provides that a person must not damage a public record that is
over 30 years old. Damage includes alteration or neglect that causes harm
to the integrity or condition of a record. This clause applies whether or not
a record is in the custody of QSA and includes public records stored by
both private or government storage providers. This clause applies to any
person as defined under s.36 of the Acts Interpretation Act 1954 and
includes government officials, private individuals and organisations.
This clause excludes any damage that results from the application of
accepted archival or conservation practice by archives staff. For example,
it will not be considered to be inflicting "damage" to a record under this
clause when archives staff remove and replace a file enclosure (that causes
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Public Records Bill 2001
long-term harm to a record) with an archival enclosure that enhances the
long-term preservation of the record.
Clause 13 provides that a person may not dispose of public records
unless those records are disposed of under the authority of the Archivist or
the Public Records Review Committee or other legal authority (such as an
Act), justification or excuse (such as those permitted under the Criminal
Code). The authority for the Archivist to dispose of public records is
established under clause 26 of the Bill.
Clause 14 provides that controlling or responsible public authorities (as
defined in clause 15 of the Bill) must take all reasonable action to ensure
the accessibility of public records that may only be produced or made
available with the use of particular equipment or information technology.
This includes technology-dependent records such as computer-generated
records and audio-visual records. In providing access to such records
public authorities must also ensure the integrity and usability of the record
is maintained. This clause aligns with the requirements to maintain the
integrity of electronic written documents (s. 20 of the Electronic
Transactions (Queensland) Act 2001) and electronic communications (s.
21 of the Electronic Transactions (Queensland) Act 2001) in an accessible
form for subsequent reference.
Division 3--Access to public records
Clause 15 defines "responsible public authority" as the public authority
currently responsible for administering the function or activity from which
a record was generated.
Clause 16 defines "restricted access period" so that the access provisions
under this Bill are aligned with information categories defined in ss. 36 -
37, ss. 42 - 44 and s. 46 of the Freedom of Information Act 1992.
This clause applies to all public authorities as defined under this Bill
irrespective of whether or not a public authority is regarded as an "agency"
under the Freedom of Information Act 1992.
The purpose of this clause is to provide a framework for ensuring that all
public records are made available for reference at some point in time. All
restricted access period determinations made by public authorities under
this clause must be given to the Archivist in writing. Public authorities will
not be permitted to restrict access to records indefinitely, although
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Public Records Bill 2001
restrictions of greater than 100 years may be obtained by regulation as
detailed in clause 18 (4) or 18 (5).
The responsible public authority, on occasions in consultation with the
Archivist, determines access periods in accordance with relevant
regulations, legislation and standards. At the time of transferring public
records to QSA the responsible public authority must advise the Archivist
in writing of the restricted access periods for those records.
Restricted access periods are based on the premise that sensitivity to
information contained in records declines over time. All restricted access
periods commence from the day of the last action on a record. Depending
on the sensitivity of a record, restricted access periods may be up to 30
years, up to 65 years, up to 100 years or beyond where set by a regulation
in accordance with the conditions set out in clause 18 (4) or 18 (5) of this
Bill.
Cabinet and Executive Council documents and Ministerial records have
a set restricted access period of 30 years. This provision preserves the
storage and access arrangements in the "Interim Arrangement for Access to
Ministerial Records".6
A record, including Cabinet and Executive documents and Ministerial
records classified by a public authority as containing matter affecting
personal affairs under
s. 44 of the Freedom of Information Act 1992 carries a restricted access
period of up to 100 years. The restricted access period commences on the
day the record is made. The restricted access period ceases at the end of the
calendar year up to100 years after the day of the last action on the record.
Records classified by a public authority as containing matter mentioned
in s. 42 (law enforcement of public safety), s. 43 (legal proceedings) or s.
46 (matter communicated in confidence) of the Freedom of Information Act
1992 carry a restricted access period of up to 65 years. The restricted
access period commences the day the record is made. The restricted period
ceases at the end of the calendar year up to 65 years after the day of the last
action on the record.
With the exception of Cabinet and Executive Council documents and
Ministerial records, a public authority may nominate a restricted access
period of up to 30 years for any other record. The restricted access period
6 The Interim Arrangement for Access to Ministerial Office Records is a 1999 agreement
between the Premier and the then Leader of the Opposition setting out the storage and ac-
cess conditions for Ministerial records.
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Public Records Bill 2001
commences the day the record is made and ceases at the end of the calendar
year up to 30 years after the day of the last action on the record.
Clause 17 broadly outlines the process for providing public access to
records in the custody of QSA. A person may apply to the Archivist for
access to a public record in the custody of QSA. Where a fee for access is
required under a regulation, then the fee must accompany the application
for access. Where a record is older than 25 years and is not in the
possession of QSA but has been the subject of a direction issued by the
Archivist concerning the storage of those records (as set out in clause 10
(2)) then that record is considered to be "in the custody of QSA" and,
therefore, subject to this clause. This means that the Archivist may provide
access to records older than 25 years (irrespective of retention status)
outside the physical custody of QSA that have been identified and managed
in a distributed custody arrangement.
Clause 18 provides a mechanism for gaining access to public records.
The Archivist must allow an applicant access to a public record if the
restricted access period for the record has ended.
If the restricted access period has not ended, access may be obtained
under the Freedom of Information Act 1992 in accordance with ss.21 - 35
of that Act. Alternatively, an applicant may gain access to a record if the
responsible public authority has agreed in writing to provide the applicant
access to those records7. The public authority may impose conditions on
administrative access.
The Archivist may refuse access to a record where:
· Providing access would be detrimental to the preservation of the
record; or
· The record is reasonably available for purchase (for example,
birth, death and marriage records and land title records); or
· The information in the record may only be produced with the use
of particular equipment or information technology that cannot
reasonably be accessed by the Archivist.
Access to a public record may be restricted by regulation where the
following three conditions exist:
· The record is more than 100 years old; and
· The record contains highly sensitive personal information; and
7 This type of access is generally referred to as an "administrative access arrangement".
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Public Records Bill 2001
· Access to the public record is not in the public interest.
Access may also be restricted by regulation where a record contains
information that is potentially exempt from disclosure under s. 42 (g) - (i)
of the FOI Act and disclosure would compromise public safety or law
enforcement. For example, the disclosure of a prison plan may be
detrimental to public safety.
Conditions for restricting access to such records are to be explicitly
provided in such regulations.
Clause 19 provides that the Archivist may request a public authority to
review or alter a restricted access determination in accordance with clause
16 (3). The Archivist may refer any disputes with public authorities over
the determination of restricted access periods under clause 16 (4) (a) or (b)
to the Public Records Review Committee for resolution. The Archivist and
public authority must comply with the decision of the Public Records
Review Committee.
Clause 20 deals with the forms in which access to a public record may
be given to an applicant. Access conditions include the nature of the
record, the preferences of the applicant for gaining access to the record and
the capacity of the Archivist to provide access to the record.
Access to public records may be given by allowing the applicant to
either inspect the original record or a copy of the record.
Where a record is not in a written form, access to the information
contained within that record may be provided in the form of a written
document. When possible, access should be given to the original record in
its native format, including computer generated records and audio-visual
records. However, a transcript of text may be given where the original
record is a sound recording or comprises codified text such as shorthand or
Braille.
Access to electronically stored information may be provided by
generating a representation of that information in the form of a written
document. For example, a report generated from a database. As provided
in clause 55 of this Bill, to be accepted as evidence in accordance with the
requirements of the Evidence Act 1977, the authenticity and integrity of the
record must be verified by the entity providing access to the record. That is,
either the Archivist or public authority where the Archivist has issued a
directive relating to the storage of public records more than 25 years old in
accordance with the clause 10 (2).
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Public Records Bill 2001
A person seeking access to a public record may nominate their preferred
form of access (e.g. paper-based transcript of a sound recording). The
Archivist must meet this request unless the requested form of access:
· Would unreasonably impact on the operations of QSA; or
· Is detrimental to the preservation of the record; or
· Is inappropriate for the physical nature of the original record
(e.g. providing a sound recording of a silent motion picture film);
or
· Infringes copyright laws, where copyright ownership rests with a
person or organisation other than the State.
The Archivist may impose reasonable access conditions to records. The
Archivist may levy a reasonable fee for providing an access copy of a
record. For example, where additional material, equipment and service
costs are incurred by QSA for producing a copy of a motion picture film.
Where the applicant and the Archivist are in agreement, access to a
record may be given in another form. For example, a digital image of a
paper-based record or a contact print of a photographic negative.
PART 3--ARCHIVIST AND QUEENSLAND STATE
ARCHIVES
Division 1--General
Clauses 21 and 22 establish the position of the Archivist and the office of
Queensland State Archives (QSA). QSA is comprised of the Archivist and
QSA staff who are appointed and employed under the Public Service Act
1996.
Division 2--Functions and powers
Clause 23 provides that, subject to the Bill, the Archivist controls QSA.
The Archivist is subject to the direction of the Minister responsible for
administering the Bill and the Chief Executive Officer of the parent
department of QSA.
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Public Records Bill 2001
However, as set in clause 27 of the Bill, the Archivist and staff of QSA
are not subject to the direction of the Minister, Chief Executive Officer or
any other person in relation to making decisions about the disposal of
public records.
Clause 24 establishes the functions of the Archivist. These functions
include, but are not limited to:
· Developing and promoting methods, procedures and systems for
the creation, capture, management, storage and preservation, use
and disposal of public records;
· Identifying records of enduring value and ensuring the continued
accessibility and usability of those records whether or not they
are in the custody of archives;
· Determining the disposal of public records;
· Managing, retaining and preserving records of public authorities
and other entities;
· Providing public access to public records;
· Conducting research and providing advice about the creation,
capture, management, storage and preservation, use and disposal
of public records; and
· Undertaking other activities that complement or enhance the
Archivist's performance of other functions identified in this Bill.
Clause 25 provides the authority for the Archivist to undertake, with due
regard to existing legislation, regulations and standards, the following
activities:
· Establish and manage repositories and other facilities to store,
preserve, exhibit and provide access to public records and other
materials;
· Copy public records and other materials;
· Publish public records and other materials;
· Acquire public records by purchase, gift, bequest or loan;
· Authorise the disposal of specific public records or classes of
public records; and
· Set policies, standards and guidelines on the creation, capture
management preservation and disposal of public records. For
example, policies and standards on current recordkeeping,
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Public Records Bill 2001
managing records of webpages and websites, and best practice
guides to managing-technology dependent records.
Clause 26 empowers the Archivist to authorise the disposal of particular
public records or classes of public records where the responsible public
authority has applied for or consented to the disposal of those records. In
authorising disposal, the Archivist must give due consideration and regard
to relevant professional standards (for example the Records Management
Association of Australia, Code of Ethics and the International Standards
Organisation, ISO 15489-1: Information and documentation - Records
Management - Part 1:General) and to the purposes of the Bill. In
accordance with clause 13 of the Bill, the disposal of public records must
not take place without the prior authorisation of the Archivist or in
accordance with another legal authority, justification or excuse.
Clause 27 provides for the independence of the Archivist and the staff of
QSA in relation to disposal decisions. The Archivist and the staff of QSA
are not subject to the control or direction of a Minister or a department in
relation to making decisions about the disposal of public records.
Clause 28 allows for the storage of public records outside QSA. This
strategy is referred to as the "distributed custody model". Examples include
when the Archivist may make an arrangement with a public authority:
· Where the public authority stores its electronic records at its
premises rather than QSA;
· That creates its own permanent archives so that the authority may
store its public records in its archives rather than at QSA; or
· Where records storage is out-sourced to a third party.
Division 3--Public Records Review Committee
Subdivision 1-- Establishment
Clause 29 requires the Minister to establish a Public Records Review
Committee and outlines the Committee's functions and composition.
The functions of the Committee are to advise the Archivist and the
Minister about issues relating to the administration of the Bill, to hear
appeals submitted by public authorities against certain disposal decisions
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Public Records Bill 2001
made by the Archivist and to resolve disputes between a public authority
and the Archivist regarding the classification of records.
The Committee consists of nine members drawn from the judiciary,
State Government, Local Government, the information management
profession and five others determined by the Minister to have experience
and knowledge that is relevant to the functions and activities of the
Committee. The Archivist is not a member of the Committee but may
attend meetings in accordance with clause 38 of the Bill.
The Governor in Council will determine remuneration and allowances to
be paid to members of the Committee.
Clause 30 provides that the chairperson of the Committee must be a
member of the Committee and be appointed by the Minister.
Clause 31 provides that the maximum term of each Committee member
is up to three years. The term and conditions of each Committee member's
appointment is determined by the Minister and stated in the member's
instrument of appointment.
Clause 32 provides that Committee members may resign from their
position in writing to the Minister.
Subdivision 2--Committee Proceedings
Clause 33 allows the Committee to determine the time and place of
Committee meetings. The chairperson may also call a Committee meeting
at any time but must call a meeting of the Committee if requested to do so
by five or more members of the Committee.
Clause 34 provides for the conduct of Committee meetings. Unless
prescribed otherwise by regulation, the Committee may conduct its
proceedings as it considers appropriate. When present at Committee
meetings, the chair must preside over a meeting. When the chair is absent
from a meeting, a member of the Committee must be selected by the
members present at that meeting to chair the meeting for the duration of the
chairperson's absence.
The quorum for Committee meetings is five members. Decisions or
resolutions of the Committee are determined by the majority of the
members present and voting. The Archivist does not vote in the decisions
and resolutions of the Committee. Each member present at a meeting of
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Public Records Bill 2001
the Committee may vote on each question under the Committee's
consideration. If the votes are equal, the chairperson has the casting vote.
Clause 35 provides that members of the Committee may participate in
Committee meetings using teleconferencing and other forms of continuous
communication. A Committee member is regarded as being present at a
meeting of the Committee when using such communications to participate
in Committee meetings.
Clause 36 provides that minutes of the Committee's proceedings must
be kept.
Clause 37 requires that Committee members have a duty not to disclose
the deliberations of the Committee. However, this does not prevent the
publication of the Committee's proceedings and decisions.
Clause 38 provides that the Archivist may attend meetings of the
Committee but must not be present during deliberations regarding appeals
lodged to the Committee under clause 39 relating to disposal decisions
made by the Archivist or during the resolution of disputes between public
authorities and the Archivist regarding restricted access period
classifications of records.
Clause 39 outlines the process for conducting a review of disposal
decisions made by the Archivist. Specifically, a public authority may make
written application to the Committee for a review of a decision by the
Archivist to refuse to approve the disposal of particular public records or
classes of public records.
The application for review must be submitted to the Committee within
14 days of the notification of the Archivist's decision. A longer period for
lodging an application may be authorised by the Committee. Where the
Committee receives an application for review it must notify the Archivist in
writing of the application for review.
Clause 40 requires the Archivist to give reasons to the Committee for
refusing to authorise the disposal of particular public records or classes of
public records. The Archivist must provide these reasons in writing within
the period nominated by the Committee.
Clause 41 empowers the Committee, following its review of a decision
of the Archivist, to confirm or amend the decision, or to substitute it with a
new decision. The decision of the Committee is taken to be the final
decision. A decision made under this clause cannot be reviewed under
clause 39 of the Bill. The Committee's decision is to be regarded as the
decision of the Archivist under clause 13 of the Bill.
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Division 4--Miscellaneous
Clause 42 provides for the delegation of the Archivist's powers to an
appropriately qualified member of QSA's staff or officer or employee of a
public authority. The criteria for assessing the appropriateness of a
person's suitability as a delegate of the Archivist is based on qualifications,
experience and standing (i.e. public sector classification).
PART 4--POWERS OF ENFORCEMENT
Division 1--Authorised officers
Clause 43 empowers the Archivist to appoint a member of staff of QSA
as an authorised officer under the Public Service Act 1996 to undertake the
powers of enforcement as provided in this part.
Clause 44 requires the Archivist to issue identity cards to authorised
officers appointed under clause 43. All identity cards must indicate that the
person to whom the identify card has been issued is an authorised officer
under this Bill. All identity cards must show an expiry date, be signed by
the authorising officer and include a recent photograph of the authorised
officer. The authorised officer is required to return to the Archivist the
identity card within 21 days of ceasing duties as an authorised officer under
this Bill.
Clause 45 requires the production or display of an identity card in the
course of an authorised officer exercising certain powers under the Bill
(e.g. entry and inspection of public records and recovery of public records).
Division 2--General powers
Clause 46 provides authorised officers with the power of full and free
access to a public authority's premises to inspect public records and
examine the public authority's procedures for creating, capturing,
managing, preserving and disposing of public records. A public authority's
premises include, but are not limited to, commercial and non-commercial
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storage space provided by other public authorities and private
organisations. Prior to entry, the authorised officer will give the Chief
Executive Officer of the public authority reasonable notice of the intention
to enter and inspect public records in its possession.
Clause 47 requires a public authority to comply with an authorised
officer's request for inspection. Where an authorised officer is exercising
the power of entry and inspection within the Governor's residence, then the
authorised officer must gain the agreement of the Governor's secretary
prior to entry and inspection. The Governor's secretary must not
unreasonably withhold agreement.
Where an authorised officer is exercising the power of entry and
inspection within a court of the State of Queensland, the authorised officer
must gain the prior agreement of the registrar or proper officer of the court.
The registrar or proper officer of the court must not unreasonably withhold
agreement.
The authorised officer must give reasonable notice when proposing to
enter and inspect records in Ministerial offices. With the exception of the
Minister's private residence, a Ministerial office is the usual place or places
where the Minister's portfolio is administered (e.g. a Minister's office at
Parliament House).
Clause 48 provides that an authorised officer must not be obstructed in
the exercise of powers under this part.
Division 3--Specific powers
Clause 49 empowers the Archivist to recover public records unlawfully
in the possession of a person. The Archivist is required to give written
notice to this person and request the transfer of those records to the
Archivist or other person nominated by the Archivist. Where a person does
not comply with the Archivist's request, the Archivist may apply to the
Magistrates Court under s. 50 of the Magistrates Act 1921 for an order to
direct the recovery of the records.
Clause 50 permits the Archivist to use the power of recovery in
reciprocal agreements with other States or the Commonwealth for the
recovery of public records (i.e. estrays) of that jurisdiction. For example,
the Archivist could enter into an agreement with the New South Wales
Government whereby the Archivist could use the powers of recovery as
defined in this Bill to recover public records of New South Wales which are
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Public Records Bill 2001
unlawfully in the possession of a person in Queensland, and return them to
a person nominated by the New South Wales Government. The agreement
could be reciprocated to allow for public records of Queensland, in the
unlawful possession of a person in New South Wales, to be recovered and
returned to the Archivist.
PART 5--MISCELLANEOUS
Clause 51 provides that where another Act or regulation restricts
disclosure of information the Archivist or staff of QSA must not disclose
that information. Disclosure by the Archivist or staff of QSA is permitted
where it is necessary for the performance of their official duties, excluding
the provision of public access to public records under clause 18.
However, disclosure of information by the Archivist or staff of QSA is
permitted under clause 18 where:
· The restricted access period applied under clause 16 has ended or
access has been permitted under clause 18(2); and
· Access is not restricted by a regulation under clause 18 (4) or 18
(5).
Clause 52 provides that the inclusion of the following records as public
records, for the purposes of this Bill is at the discretion of the Governor:
· Correspondence between the Governor and the Sovereign;
· Correspondence between the Governor and the Governor-
General; and
· Correspondence between the Governor and the Governor of
another State.
Clause 53 provides that where access to public records is provided in
accordance with this Bill, protection against actions for defamation or
breach of confidence is given to the State and officials, including the author
of a public record, a person who supplied a public authority with a public
record, the Archivist, and the staff of QSA.
This section does not limit the operation of clause 54 (civil liability) of
this Bill or s. 16 of the Defamation Act 1889.
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Clause 54 provides an officer of the State with personal protection from
civil liability in certain circumstances in performing the roles and
responsibilities identified in this Bill.
Clause 55 aligns this Bill with the Evidence Act 1977 and provides for
the conditions under which a public record is admissible as evidence in
legal proceedings. To be accepted as evidence, a public record must be
produced from proper custody. Proper custody includes production of the
public record or a copy or extract from QSA. Certification as to the origin,
history, nature or contents of a public record in QSA's custody can be given
by the Archivist or authorised officer, and is admissible as evidence.
Clause 56 requires that the Archivist report annually to the Minister on
the administration of the legislation. The annual report must be produced
within four months of the end of the financial year. The annual report may
include details of the extent to which public authorities are complying with
the legislation, including instances of non-compliance.
Clause 57 states that the Governor in Council may make regulations
under this legislation.
Clause 58 provides, where relevant, existing references to the Libraries
and Archives Act 1988 in another Act or document are to be treated as a
reference to this legislation.
PART 6--TRANSITIONAL AND CONSEQUENTIAL
PROVISIONS
Clause 59 provides for the person who was the Archivist appointed in
accordance with the Libraries and Archives Act 1988 immediately prior to
the commencement of the legislation to continue in that position under this
legislation.
Clause 60 provides for a notice for recovery of public records under
section 62 (1) of the Libraries and Archives Act 1988 to continue to have
effect under clause 49.
Clause 61 provides that notices relating to restricted access periods
given to the State Archivist under regulation 23 of the Libraries and
Archives Regulations 1990 prior to the commencement of this Bill are
recognised as valid for the purposes of s.16 or s.18 (2) (b) of this Bill.
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Public Records Bill 2001
However, where access periods given to public records do not
correspond with the restricted access periods given under clause 16 of this
Bill, then the public authority must realign its access decision with clause
16 of this Bill and provide the Archivist with written notification of the
revised access decision within 1 year of the commencement of this Bill.
This revised restricted access period notice supersedes all prior notices.
Clause 62 amends the Acts mentioned in Schedule 1.
PART 7--VALIDATION PROVISION
Clause 63 recognises and validates any action taken by the Archivist
under the Libraries and Archives Act 1988 and the Libraries and Archives
Regulations 1990 prior to the commencement of this section of the Bill.
This includes all prior disposal authorisations and recommendations
relating to the management of public records.
SCHEDULE 1
AMENDMENTS
Schedule 1 makes consequential amendments to the following Acts:
· Agricultural and Veterinary Chemicals (Queensland) Act 1994;
· Business Names Act 1962;
· Cooperatives Act 1997;
· Crime Commission Act 1997;
· Criminal Law (Rehabilitation of Offenders) Act 1986;
· Education (General Provisions) Act 1989;
· Electricity Amendment Act (No.3) 1997;
· Evidence Act 1977;
· Freedom of Information Act 1992;
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Public Records Bill 2001
· Gladstone Power Station Agreement Act 1993;
· Land Act 1994;
· Land Title Act 1994;
· Libraries and Archives Act 1988;
· Meat Industry Act 1993;
· Queensland Competition Authority Act 1997;
· School of Arts (Winding Up and Transfer) Act 1960; and
· Sugar Industry Act 1999.
SCHEDULE 2
DICTIONARY
The dictionary defines certain terms in the Bill as provided for in clause 4.
© State of Queensland 2001