The new financial year has arrived and it seems timely to remind you of the legislation that goes along with a ‘cleaning out’ of the archives.
Before you press delete or shred that document, be sure to exercise diligence in complying with document and record retention requirements. Non-compliance can result in economic loss or even strict criminal liability for individuals and organisations.
There are various legislative regimes in Australia which prescribe specific time frames for document and record retention and destruction. Non-compliance with such requirements can result in economic loss, such as losing coverage of insurance, or even strict criminal liability for individuals and organisations – the most common example being for a company, its directors and officers.
Currently, there are around 80 Acts at both the State and Federal level which regulate document and record retention and destruction. The various regimes are not codified in any way, some are industry specific and some are catch-all legislation. Where there is an applicable regime, care should be taken to ensure that requirements regarding to the form, manner, location and length of time that documents must be kept are complied with.
Where there is no clear legislative guidance as to the applicable retention period, the documents must be kept for a reasonable time, which is usually seven years.
Storing documents and records electronically
Special regard should be given to documents and records stored in electronic form. Publications such as AS 4390 Australian Standards for Records Management and Australian Standard (AS ISO15489) provide useful guidance for keeping electronic records. There are also individual regimes governing electronic transactions. The applicable Commonwealth and State Evidence Acts and Electronic Transactions Acts set out the various requirements.
Destruction of documents
In addition to the retention period set out in the various regimes, there are additional common law and legislative duties for document destruction. For example s254 of the Crimes Act 1958 (Vic) and s317 of the Crimes Act 1900 (NSW) create an offence of the destruction of documents that a person knows are reasonably likely to be required as evidence in a legal proceeding.
On the other hand, the Privacy Act 1988 (Cth) requires that records containing personal information must be destroyed or permanently de-identified when no longer needed for any purpose for which the information may be used or disclosed under the Privacy Act 1988 (Cth). This means a balance must be struck between retaining documents in accordance with applicable retention periods and destroying them when they are no longer required for any legitimate business purpose.
Document retention policies should also explain how documents are to be destroyed, to ensure this is done in a safe and secure manner.
Table of common legislative regimes
This table of legislation relating to document retention and destruction, outlines some of the more commonly applicable legislative regimes governing document and record retention and destruction. Individual research into the regimes should be conducted as retention requirements may change.
This table is intended for use as a high level aid to identifying relevant regimes. It does not constitute legal advice.
Further, this table has a private sector focus and therefore does not address record retention issues particular to the public sector, such as the Public Records Act 1973 (Vic) and State Records Act 1998 (NSW).