September 2022 - No 155
State Records Act 1998 and the Museums of History NSW Act 2022
Legislative changes to the recordkeeping framework in New South Wales have been recently passed by the Parliament of NSW.
The changes effectively result in the provisions of the current State Records Act 1998 being administered by two new statutory bodies, the State Records Authority of NSW (State Records NSW) and Museums of History NSW (MHNSW) both of which will be established as at 31 December 2022 pursuant to the recently created Museums of History NSW Act 2022 and an amended State Records Act.
The amendments to the State Records Act will strengthen the framework for good recordkeeping, which underpins government accountability. They will also ensure the care and protection of records of enduring value and enable a transparency of government thinking and decision making by enabling earlier public access to State records.
Provisions of the State Records Act relating to recordkeeping regulation and compliance and the protection of State records will be administered by State Records NSW while provisions relating to the management of, and access to, the State Archives Collection will be the responsibility of Museums of History NSW. The following provides a breakdown of the shared responsibility for administration of the State Records Act:
|Part 1 (Preliminary)||Administered by State Records NSW|
|Part 2 (Records management responsibilities of public offices)||Administered by State Records NSW|
|Part 3 (Protection of State records)||Administered by State Records NSW|
|Part 4 (Entitlement to control)||Administered by Museums of History NSW|
|Part 5 (Recovery of estrays and other State records)||Administered by Museums of History NSW|
|Part 6 (Public access to State records)||Administered by Museums of History NSW|
|Part 7 (The Authority and the Board)||Administered by State Records NSW|
|Part 8 (Miscellaneous)||Administered by State Records NSW|
In addition to the changes for the administration of the State Records Act, there are also reforms and changes to the provisions of the Act.
Change to the definition of a public office
There has been a minor change of the definition of a public office at section 3(1) to ensure that private individuals or organisations are not included as public offices.
Change to the definition of a State record
The definition of a State record at section 3(1) has been amended. It is now:
State record means a record made or received by a person, whether before or after the commencement of this section -
a. in the course of exercising official functions in a public office, or
b. for the purpose of a public office, or
c. for the use of a public office.
The new definition clarifies what is meant by the term State record and removes “and kept” from the definition to make it clear that any record made or received for use by a public office is a State record for the purposes of the Act whether it was kept or not.
New monitoring power for State Records NSW
The State Records Act includes a new monitoring power for State Records NSW. This will commence from 31 December 2022.
The new sections 12(5) and 12(6) enable the Authority to issue a notice to a public office requiring the public office to conduct an assessment of its recordkeeping processes and records management program, and to report the findings to State Records NSW. If State Records NSW is not satisfied with the public office’s report or the findings of the report, then it may include information about this in its Annual Report.
This new power recognises the importance of good recordkeeping as a foundation of accountability and transparency of government and is designed to support better compliance across public offices. It will enhance the efficiency and effectiveness of existing regulatory tools.
Increase in penalty units and timeframe for proceedings for offences
Section 21(1) prohibits any person from
- abandoning or disposing of a State record
- transferring the ownership of a State record
- taking a State record out of NSW, or
- damaging, altering, or neglecting a State record.
The penalty units for section 21(1) have increased from 50 penalty units to 100 penalty units (this equates to $11,000).
Section 78 of the Act covers the timeframe in which proceedings for offences under the State Records Act can be commenced. The timeframe has been increased from within 2 years to within 3 years. This change is a direct response to the recommendations made by the Independent Commission Against Corruption in its Operation Dasha report.
Changes to the transfer of State archives provisions
Public offices will now be required to develop plans to transfer records required as State archives into the State Archives Collection. It is important to note that there is a 12-month transition period to these new arrangements which commence operation from 1 January 2024.
Transfer plans will enable Museums of History NSW to better support public offices with their transfer obligations relating to the State archives they create and hold. The details for transfer plans will be published via Regulations to the State Records Act and the information received will be used to support the strategic and operational planning for the future care and protection of the State Archives Collection.
Reforms to the access provisions for State records
There has been a change to arrangements for public access to State records. Effectively, the open access period for State records has been reduced from 30 years to 20 years and records older than 20 years will be open to public access by default. There are, however, no changes to the ability of a public office to apply a direction that closes records to public access.
Consistent with provisions relating to transfer plans, it is important to note that there is a 12-month transition period to these new access arrangements which commence operation from 1 January 2024.
The reduction of the open access period from 30 to 20 years for State records is in line with current trends across jurisdictions and community expectations that government should be transparent and accountable for the decisions it makes on behalf of its citizens.
Along with the change to the open access period, State records will become open to the public by default after 20 years. There will no longer be a need for public offices to register Open to Public Access (OPA) directions. Access directions will no longer be a requirement for the transfer of State archives into the State Archives Collection if the public office agrees that the records can be open to the public after 20 years.
Updated functions of the State Records Authority
A key component in strengthening the framework for good recordkeeping in NSW Government has been the updating of the functions of the State Records Authority. Updates to Section 66 of the Act now clearly identify the primary roles of the State Records Authority: to oversight recordkeeping in public offices and to identify the State records that should be retained as State archives.Back to top
What do all these changes mean for public offices?
First and foremost, it will be business as usual in the short-term, particularly in relation to those provisions relating to transfer and access.
Changes to Parts 2 and 3 of the State Records Act will commence on 31 December 2022. As noted above, there will be a 12-month transition period to phase in the new requirement for public offices to submit transfer plans and the changes to access which will not commence operation until 1 January 2024.
Both State Records NSW and Museums of History NSW will support and collaborate with public offices through the changes. The two organisations will work together, and our focus will be to continue supporting and working with public offices to achieve improved recordkeeping.
Museums of History NSW will start contacting public offices from early 2023 concerning access and transfer provisions. We are well aware that provisions relating to access, in particular, will require advice and support.
Museums of History NSW will be developing tools within our online service portal to support public offices to comply easily and seamlessly with transfer and access provisions.
The changes do not impact the operations of the Government Records Repository (GRR) which continues to offer compliant services in records management as part of the commercial operations of Museums of History NSW.Back to top
Records Managers Online Forum
There will be a Records Managers Forum in early November to provide further details of the changes, including a Q and A session. To register for the Forum on Wednesday 9 November at 10.00am, click here.
If you have any queries about the changes to Parts 2 or 3 of the State Records Act, please contact email@example.com.
If you have queries about the changes to Parts 4 or 6, please contact firstname.lastname@example.org.Back to top