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Can born digital and/or digital images of records be admissible as evidence?

In New South Wales, in most cases, there is no barrier to organisations tendering digital or scanned images of records as evidence. They can be submitted in legal proceedings and in response to Government Information (Public Access) Act 2009 (GIPA) applications and used for other evidentiary purposes.

The following NSW legislation governs the admissibility of evidence in New South Wales.

Legislation Explanation

Electronic Transactions Act 2000

This Act enables the use of electronic communications for transactions and facilitates the use of electronic transactions.

The Act recognises that business processes have changed and that electronic transactions are valid transactions. Importantly, this Act permits the use of electronic documents, if the document is reliable, complete and unaltered, is readily useable and accessible for subsequent reference (section 10).

There are exceptions where originals are required. Check the Electronic Transactions Regulation 2017 for exclusions. 
Evidence Act 1995 

This Act mirrors the Commonwealth Evidence Act and governs the admissibility of evidence in legal proceedings.

The definition of a ‘document’ includes information in any form, or which has been produced by a device such as scanned records or digitised paper records.

Section 51 of the Act abolishes the original document rule.

If there is any doubt about the admissibility of digital images, your organisation should seek a legal opinion.
Electronic Transaction Regulation 2017 This Regulation excludes certain laws and requirements from the operation of the Electronic Transactions Act 2000.

 

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Proving the credibility of digital images

While the legislation described above makes it easier for digital images to be admissible in court, the value or credibility of a digital image as evidence can still be questioned. 

For example:

The authenticity of a record may be challenged or there may be other reasons to doubt the reliability of a digital image. In these cases, your documentation regarding how digitisation was conducted, digital images were created and kept, and the quality assurance processes used by your organisation, may help to demonstrate that a digital image is an authentic and credible representation of the original record.

You may be requested to provide documentation to prove that your organisation has:

  • a trusted, reliable framework for digitisation
    • plans for the digitisation program with appropriate risk assessments established
    • policies and procedures to guide digitisation processes and checks
    • training programs and support mechanisms for staff involved in digitisation
    • monitoring and review mechanisms.
  • full and accurate representations of originals
    • quality benchmarks and  assurance measures
    • suitable metadata and technical specifications
    • routine checking and monitoring of hardware and software performance, including documentation of any rectifications
  • digital images are protected from unauthorised access, alteration, tampering or loss
    • decisions regarding the storage of digital images
    • security and access controls, and any changes that have been applied to digital images (e.g. system audit trails)
    • disposal requirements and decisions applied to digital images and the original source records
    • management and migration plans, and programs for digital images.

These measures can help your organisation to demonstrate that your recordkeeping and accountability practices are sound and can withstand the scrutiny of the courts, Parliament, the Ombudsman and relevant auditors.

Note: Originals of digitised records can only be destroyed under the General authority: original or source records that have been copied (GA45)

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What types of documents are still created and received in physical formats?

Most records are born digital, however, a small proportion are still created or received in physical format due to legislative requirements, including those records that are excluded from the Electronic Transactions Act 2000.  This includes:

  • documents which need to be witnessed or endorsed that require wet signatures such as statutory declarations, power of attorneys, wills, codicils and other testamentary instruments, trust and guardianship documents
  • documents which need to be verified or certified as copies of original documents
  • documents that require seals or stamps.

The list above is not exhaustive. Public offices should seek legal advice on records subject to specific legislative or statutory requirements.

Please note that a requirement to create a record in paper does not necessarily mean it needs to be retained in that format. If the system allows for an attestation that the document has been verified, you may be able to destroy the original once the digital version has been captured.

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References

  1. “Evidence law in Australia,” National Archives of Australia,  accessed May 29, 2019, http://www.naa.gov.au/information-management/information-governance/evidence/evidence-law-australia/index.aspx
  2. “Oaths Act 1900 No 20,” NSW Legislation, accessed May 29, 2019, https://www.legislation.nsw.gov.au/#/view/act/1900/20
  3. “Power of Attorney Act 2003 No 53,”  NSW Legislation, accessed May 29, 2019, https://www.legislation.nsw.gov.au/#/view/act/2003/53/part2
  4. “Succession Act 2006 No 80, ”  NSW Legislation, accessed May 29, 2019, https://legislation.nsw.gov.au/#/view/act/2006/80/chap1
  5. “Real Property Act 1900 No 25,”  NSW Legislation, accessed May 29, 2019, https://www.legislation.nsw.gov.au/#/view/act/1900/25
  6. ”Guardianship Act 1987 No 257,” NSW Legislation, accessed May 29, 2019, https://www.legislation.nsw.gov.au/#/view/act/1987/257

Revised June 2019

 

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