State Records Act 1998 No 17
Part 4 Authority entitled to control of State records not currently in use
26 Application of Part to Governor, Parliament and courts
(1) This Part does not apply to the following persons, or to the State records for which they are responsible, except as may be provided by agreement between the person and the Authority:(a) the Governor acting in the Governor’s vice-regal capacity,(b) the Houses of Parliament,(c) a court or tribunal, in respect of the court’s or tribunal’s judicial functions.(2) The Authority may enter into agreements for the purposes of this section providing for the application (with or without specified modifications) of any of the provisions of this Part to those persons and their records.Note.Section 5 should be referred to to understand how this Part applies to State collecting institutions.
27 Authority’s entitlement to State records no longer in use
Once a State record is no longer in use for official purposes in the public office responsible for the record, the Authority is entitled to control of the record and the public office ceases to be entitled to control of it.
28 Records more than 25 years old presumed not in use
(1) A State record is to be regarded as no longer in use for official purposes in a public office if the record is more than 25 years old, unless the public office has made a determination (a still in use determination) that the record is still in use for official purposes in the public office. A record may be no longer in use even if it is less than 25 years old. This section is not intended to create a presumption that a record is in use just because it is less than 25 years old.(2) A still in use determination need not be specific to a particular record and can instead be made so as to relate to a series, group or class of records. A public office must consult with the Authority before making a still in use determination. A still in use determination is to be in writing and a copy of it is to be given to the Authority as soon as practicable after it is made.(3) A still in use determination remains in force for the period (up to 5 years) specified in the determination unless it is revoked sooner by the public office responsible for the records concerned. The determination can be revoked by giving notice of revocation in writing to the Authority and can be remade before it expires, or a new determination can be made. There is no limit on the number of times a still in use determination can be made or remade.(4) The Authority may in a particular case request a public office to have a still in use determination made by it reviewed and approved by the Minister responsible for the public office. The determination lapses and cannot be remade without the permission of the Authority if it is not approved by the Minister within 3 months after the Authority’s request is made.(5) A still in use determination can be made before any record to which it applies is 25 years old.
29 Records required to be made available to Authority
A public office that has control of a record that the Authority is entitled to control of under this Act is required to make the record available to the Authority (to enable the Authority to take control of the record). The Authority may issue guidelines to public offices from time to time as to how State records are to be made available to the Authority and public offices are to comply with those guidelines.
30 How the Authority takes control of a record
(1) The Authority takes control of a State record by taking the record into its possession or custody or by entering into an agreement, understanding or other arrangement whereby some other person (which can include the public office that is responsible for the record) is to have possession or custody of the record.(2) Any such agreement, understanding or other arrangement must include provision for facilitating the giving of access to records in accordance with this Act.Note.An agreement under this section with a public office could provide for the payment by the Authority of the reasonable costs to be incurred by the public office in complying with section 14 (Obligation to maintain accessibility to equipment/technology dependent records) in respect of a record to which the agreement applies.
31 Authority not required to take control of records
(1) The Authority is not required to take control of a State record just because it is entitled to control of the record.(2) The fact that the Authority does not take control of a State record when it becomes entitled to do so does not prevent the Authority from subsequently taking control of the record in exercise of its entitlement to do so.
32 Authority can be required to take control of records in some cases
(1) If the Authority is entitled to control of a State record and the record is more than 25 years old, the public office that has control of the record can request the Authority to take control of the record.(2) The Authority must comply with the request within a reasonable time after it is made unless:(a) the Authority and the public office enter into an agreement under which the public office is to keep control of the record, or(b) the Authority undertakes to pay the reasonable costs to be incurred by the public office in keeping control of the record and of fulfilling its obligations under section 14 (Obligation to maintain accessibility to equipment/technology dependent records) with respect to the record, or(c) the public office is, in respect of the record, in breach of guidelines issued under section 29 as to how State records are to be made available to the Authority, or(d) the Authority gives the public office permission to dispose of the record.(3) A request under this section can be made so as to relate to a series, group or class of records instead of being made in relation to an individual record.
33 Authority’s entitlement to control does not affect other interests in State records
The Authority’s entitlement to control of a State record under this Part does not extinguish, limit or otherwise affect any right or interest of any other person in the State record.Note.The Authority’s entitlement to control of a State record under this Part does not operate to confiscate the record and vest ownership of it in the Authority or the State. It gives the Authority control over records that would otherwise be under the control of public offices. If a private person owns a State record that is under the control of a public office, this Part does not prevent the person asserting that ownership (even after the Authority has taken control of the record).
34 Secrecy and other duties do not prevent compliance with this Part
(1) No duty of confidence, secrecy or non-disclosure (whether or not the duty arises under an Act) operates to prevent the giving of control of a State record to the Authority in compliance with this Part.(2) This section overrides a provision of any other Act that is inconsistent with it, except a provision that states specifically that it applies despite this section.
35 Public office entitled to return of records if needed
(1) If a record that is a State archive is required for use for official purposes in the public office responsible for the record, the public office is entitled to temporary custody of it while it is required for use.(2) The public office is not entitled to custody of the original record (unless the Authority is satisfied that custody of the original is needed) and the giving of custody of a copy of the record is sufficient to satisfy this section.(3) If custody of the original is needed it can be given subject to conditions designed to ensure the safe keeping and proper preservation of the original.(4) The Authority is entitled to charge a public office for the reasonable expenses that the Authority incurs in giving the public office temporary custody of a record under this section.
36 Arrangements for other persons to have possession/custody of State archives
When the Authority enters into an agreement, understanding or other arrangement with any person (including a public office) under which the person is to have possession or custody of a State archive, the agreement, understanding or other arrangement is to include provision that will ensure that arrangements are in place for:(a) enabling public access to the record to be provided in accordance with this Act, and(b) facilitating return of the record if it is required for use for official purposes in the public office responsible for the record, and(c) ensuring the safe keeping and proper preservation of the record.
36A Arrangements to facilitate copying, publication and access to State archives
(1) The Authority may enter into arrangements (access arrangements) under which the Authority is to provide a person (including a public office) with access to State archives for the purpose of enabling the person to make copies of State archives or publish or provide other persons with access to copies of State archives. Access arrangements can only relate to State archives that are open to public access under this Act.(2) Access arrangements can be commercial arrangements (entitling the Authority to payment in connection with the operation of the arrangements) and can provide for the arrangements under which the person to whom the Authority gives access to State archives may make copies of State archives or publish or provide other persons with access to copies of State archives and arrangements under which the person may charge for publishing or providing access to copies of State archives.(3) Access arrangements can include arrangements with a person outside the State and arrangements that provide for the publishing of and provision of access to copies of State archives outside the State.(4) This section does not give the Authority power to override any right in the nature of copyright and does not give the Authority or any party to an access arrangement power to do anything that would be an infringement of copyright.(5) If an access arrangement provides for the provision of access to copies of State archives to other persons by the person to whom access is provided by the Authority under the arrangement, section 62 (Protection from liability when access given) extends to the provision of access by that person pursuant to the arrangement in the same way as it applies to the giving of access to a record under this Act by an access provider.(6) The Authority is taken to have always had the power conferred by this section.