State Records Act 1998 No 17
Current version for 20 May 2014 to date (accessed 28 November 2014 at 01:16)
Part 5

Part 5 Recovery of estrays and other State records

37   Meaning of “estray”

A State record is an estray for the purposes of this Act if it is owned by the State or an agency of the State but is not under the control of the public office responsible for the record (except as a result of being under the control of the Authority or of some other person with lawful authority).
Note. Examples of estrays are State records owned by the State that have been abandoned or that have been removed from or transferred out of the control of the responsible public office without lawful authority. A State record that has been transferred with lawful authority can become an estray if that authority is subsequently revoked and the record is not returned. The Authority can give permission under section 21 to the transfer of a State record.

38   Presumption that State records are owned by the State

(1)  In any proceedings for the recovery of possession of a State record by or on behalf of the State or an agency of the State it is to be presumed that the record is owned by the State or agency of the State. The presumption is rebuttable by evidence to the contrary.
(2)  The presumption does not apply to a record created before the commencement of this section unless it is established that the record was in the ownership of the State or an agency of the State on some occasion after that commencement.
(3)  The presumption is rebutted if it is established that the person who has possession of the record (the holder) obtained possession of the record as a result of the distribution of the estate of a deceased person, or as a purchaser in good faith and for value without notice of any defect in title of the person who transferred the record to the holder or that the person who transferred the record to the holder had no title to it. This subsection does not limit the ways in which the presumption can be rebutted.
Note. The effect of this presumption is not to make the State the owner of a record when there is evidence that the State is not the owner. The presumption operates to put the onus of establishing ownership on the person who is disputing the State’s claim to the record, ie the State is regarded as the owner until someone establishes to the contrary. Rebuttal of the presumption does not of itself mean that the State is not the owner of the record. The State can still establish ownership of the record in the same way as any person would establish ownership of property. The fact that a person has obtained possession of the record as a purchaser in good faith and for value without notice that the State was the owner of the record, or obtained possession under a will or intestacy, does not of itself mean that the person is the owner of the record. Questions of ownership and entitlement to possession of a State record are to be determined as for any other item of personal property.

39   Power to inspect records believed to be estrays

(1)  The Authority may give a direction in writing to a person who has possession or custody of a record that the Authority believes to be an estray directing the person to produce the record for inspection by the Authority at any reasonable time and place determined by the Authority and specified in the direction.
(2)  A person who is given such a direction must comply with it.

Maximum penalty: 50 penalty units.

(3)  The Authority can make and retain a copy of any record produced to the Authority under this section but the following restrictions apply to such a copy (and any further copy made from it) for 10 years after the record is produced to the Authority:
(a)  the Authority must not publish or otherwise publicly release the copy,
(b)  the copy is not open to public access under this Act.
(4)  The owner of a record can by agreement with the Authority waive (wholly or partly) the restrictions imposed by subsection (3).
(5)  This section does not authorise the Authority to infringe any copyright.

40   Directions for protection of estrays

(1)  The Authority may give any person who has possession or custody of a record that the Authority believes to be an estray a direction in writing that for a period specified in the direction (not exceeding 90 days) the person must not do any of the following things except with the written permission of the Authority:
(a)  sell the record or offer it for sale,
(b)  dispose of the record or part with possession of it,
(c)  remove the record from New South Wales.
(2)  A person must not contravene a direction given to the person under this section.

Maximum penalty: 50 penalty units.

(3)  The Authority can revoke a direction under this section at any time by notice in writing to the person to whom the direction applies.
(4)  If the Authority takes action in a court of competent jurisdiction on behalf of the State or any public office to recover possession of an estray while the estray is the subject of a direction under this section, the direction remains in force until the action is determined, unless the court otherwise orders or the direction is revoked by the Authority.

41   Directions and assistance to public offices for recovery of estrays

The Authority may give directions to a public office that the Authority considers is responsible for a record that is an estray to take such steps as the Authority considers necessary or desirable to effect recovery by the public office of possession of the record. A public office must comply with any reasonable directions of the Authority under this section. The Authority may assist a public office to recover possession of an estray.

42   Court action to recover estrays

(1)  The Authority can take action in a court of competent jurisdiction on behalf of the State or any public office to recover possession of an estray.
(2)  When the Authority has commenced proceedings to recover possession of an estray, the Authority may direct any person who has possession of the estray to give possession of the record to the Authority pending the determination of the proceedings. A person who is given such a direction must comply with it unless the court before which the proceedings are pending otherwise orders.

Maximum penalty: 50 penalty units.

43   No limitation period on action to recover estrays

No limitation period operates to bar the rights of the State or a public office (or the Authority on behalf of the State or a public office) in relation to an action for the recovery of possession of a record that is an estray.

44   Arrangements for protecting estrays in private hands

The Authority may enter into an agreement or other arrangement with any person who has possession of a record that the Authority believes to be an estray to make such provision as the Authority considers appropriate for or with respect to the preservation, security and confidentiality of and public access to the record.

45   Power of Authority to obtain State records of archival significance

(1)  The Authority can apply to a court of competent jurisdiction for an order for possession of a State record that the Authority considers to be of archival significance and that is in private hands. A State record is taken to be in private hands whenever it is not under the control of a public office. An application can be made whether or not the person who has possession of the record is the owner of the record.
(2)  The court is to grant the application if satisfied that the record is a State record, and otherwise is to refuse to grant the application.
(3)  When the Authority obtains possession of a record pursuant to an order under this section, ownership of the record vests in the State freed and discharged from all other estates and interests in the record and the Authority is entitled to control of the record.
(4)  Any person who suffers loss as a result of the extinguishment of any estate or interest in a record by this section is entitled to be paid compensation by the Authority for the value of that loss.
(5)  The amount of that compensation is to be determined by the Authority but if the person entitled to the compensation is dissatisfied with the Authority’s determination the person can apply to a court of competent jurisdiction for a review of the Authority’s determination. The court’s decision on the review is to be given effect to by the Authority.
(6)  This section applies to a State record whether or not it is an estray. No limitation period operates to bar the rights of the Authority under this section.

46   Directions to protect State records of archival significance

(1)  The Authority may give a person who has possession or custody of a record a protection direction for the record if the record is or is proposed to be the subject of an application under section 45. The direction remains in force while the application is pending (unless revoked sooner) but a protection direction given before the application is made lapses if the application is not made within 30 days after the direction is given.
(2)  A protection direction for a record is a direction in writing that a person must not sell the record or offer it for sale, must not dispose of the record or part with possession of it and must not remove the record from New South Wales, except with the written permission of the Authority.
(3)  When an application under section 45 is pending in respect of a record, the Authority may give a person who has possession or custody of the record a direction in writing requiring the person to give custody of the record to the Authority pending the determination of the application.
(4)  A person given a direction under this section must not contravene it unless the court before which the relevant application is pending orders otherwise.

Maximum penalty: 50 penalty units.

(5)  The Authority may revoke a direction under this section at any time by notice in writing.

47   Authority can acquire State records

(1)  The Authority can acquire by purchase on behalf of the State any State record that the Authority considers to be of archival significance.
(2)  The Authority can acquire by gift or bequest any State record and can agree to carry out the conditions of any such gift or bequest. The rule of law against remoteness of vesting does not apply to or in respect of any condition of a gift or bequest to which the Authority has agreed.

48   Application of estray law in and of other jurisdictions

(1)  The recognised estray provisions of the laws of another Australian jurisdiction apply in this State to a record located in this State (other than a State record) in the same way as they apply in that other jurisdiction to a record located in that jurisdiction.
(2)  Recognised estray provisions applying under this section apply subject to such modifications as may be prescribed by the regulations under this Act.
(3)  This Part extends to a State record that is located outside the State. The Authority is authorised to exercise its functions under this Part in any Australian jurisdiction in respect of any State record that is located in that jurisdiction.
(4)  The Authority may, in accordance with a request of an interstate archives body, exercise on behalf of the body in New South Wales any function conferred on the body by or under recognised estray provisions in respect of a record located in New South Wales.
(5)  An interstate archives body may, in accordance with a request by the Authority, exercise on behalf of the Authority in that body’s jurisdiction any function conferred on the Authority under this Part in respect of a State record located in that jurisdiction.
(6)  In this section:

interstate archives body means a body established under the law of another Australian jurisdiction and declared by the Minister by order published in the Gazette to be the interstate archives body for the purposes of this section.

recognised estray provisions means such of the provisions of the law of another Australian jurisdiction as may be declared for the time being by the Minister by order published in the Gazette to be recognised estray provisions for the purposes of this section.

Top of page