2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Minister for Urban Services)
Territory Records Bill 2002

Contents
	Page
Part 1	Preliminary
	1	Name of Act	2
	2	Commencement	2
	3	Main purposes of Act	2
	4	Dictionary	3
	5	Notes	3
	6	Application of Act	3
Part 2	Management and care of records
Division 2.1	General
	7	Meaning of agency	5
	8	Meaning of principal officer	5
	9	Meaning of record of an agency	6
	10	Meaning of records management	7
	11	Meaning of control and entitled to control of a record	7
	12	Records to which Act applies	7
Division 2.2	Obligation of principal officers
	13	Principal officers must ensure Act complied with	7
Division 2.3	Records management
	14	Agencies to make and keep records	8
	15	Agencies to ensure accessibility of information	8
	16	Approved records management programs	8
	17	Criteria for approval of records management programs	10
	18	Approved standards and codes for records management	10
	19	Approval of schedules for the disposal of records	11
	20	Review of approved standards and codes	11
	21	Inspection of records management programs	11
Division 1.4	Protection of records
	22	Protecting records	11
	23	Protection measures	12
	24	Normal administrative practice	13
Division 1.5	Miscellaneous
	25	Records of agency that no longer exists etc	13
Part 3	Access to records
	26	Access to records	15
	27	Requests for access	15
	28	Declaration applying provisions of FOI Act	15
	29	Giving access to records under this Act	16
	30	Register of records	17
	31	Protection from liability when access given	17
Part 4	Director of Territory Records
	32	Establishment of position	19
	33	Functions	19
	34	Appointment of the director	21
	35	Term of appointment of director	21
	36	Ending of appointment of director	21
	37	Conditions of appointment generally	22
	38	Delegation	22
	39	 Ministerial directions to the director	22
	40	Arrangements for staff	23
Part 5	Territory Records Advisory Council
Division 5.1	Establishment, functions and members of council
	41	Territory Records Advisory Council	24
	42	Functions of council	24
	43	Membership of council	24
	44	Appointed members of council	24
	45	Chairperson and deputy chairperson	25
	46	Term of appointment of appointed members	25
	47	Ending of appointment of appointed members	26
	48	Conditions of appointment generally	26
Division 5.2	Proceedings of council
	49	Time and place of meetings of council	26
	50	Procedures governing proceedings of council	27
	51	Disclosure of interests by members of council	28
Part 6	Miscellaneous
	52	Secrecy	29
	53	Secrecy about information acquired under other Acts	30
	54	Protection from liability	31
	55	Determination of fees	31
	56	Approved forms	31
	57	Regulation-making power	32
	58	Review of the Act	32
Part 7	Amendment of Freedom of Information Act 1989
	59	Act amended in pt 7	33
	60	New section 6A, part 1	33
Dictionary		35

2002
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Minister for Urban Services)
Territory Records Bill 2002

A Bill for
An Act about Territory records, and for other purposes

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1	Preliminary
1	Name of Act
This Act is the Territory Records Act 2002.
2	Commencement
	(1)	Part 3 (Access to records) commences on 1 July 2007.  
Note 	The naming and commencement provisions automatically commence on the notification day (see Legislation Act 2001, s 75).
	(2)	The remaining provisions commence on a day fixed by the Minister by written notice.
Note	A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act 2001, s 77 (1)).
	(3)	If the remaining provisions do not commence before 1 July 2003, they automatically commence on the first day after that day.
	(4)	The Legislation Act 2001, section 79 (Automatic commencement of postponed law) does not apply to this Act.
3	Main purposes of Act
The main purposes of this Act are—
	(a)	to encourage open and accountable government by ensuring that Territory records are made, managed and, if appropriate, preserved in accessible form; and
	(b)	to preserve Territory records for the benefit of present and future generations; and
	(c)	to ensure that public access to records is consistent with the principles of the Freedom of Information Act 1989.
4	Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1	The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act.
	For example, the signpost definition ‘agency—see section 7 (Meaning of agency)’ means that the word ‘agency’ is defined in that section.
Note 2	A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act 2001, s 155 and s 156 (1)).
5	Notes
A note included in this Act is explanatory and is not part of this Act.
Note	See Legislation Act 2001, s 127 (1), (4) and (5) for the legal status of notes.
6	Application of Act
	(1)	This Act does not apply to records that are health records within the meaning of the Health Records (Privacy and Access) Act 1997 (the Health Records Act).
	(2)	This Act does not apply to records of the commissioner for health complaints in relation to—
	(a)	a complaint made to the commissioner under the Health Records Act, section 18 (1) or (3); or
	(b)	a request to review made to the commissioner under the Health Records Act, section 18 (4); or
	(c)	the exercise of a function under the Community and Health Services Complaints Act 1993 in relation to a complaint or request to review.
	(3)	This Act does not apply to records of the legal aid commission that relate to the exercise of a function of an officer or employee of the commission when practising as, or exercising a function of, a solicitor under the Legal Aid Act 1977.

Part 2	Management and care of records
Division 2.1	General
7	Meaning of agency
For this Act, an agency is—
	(a)	the Executive; or
	(b)	the Supreme Court; or
	(c)	the Magistrates Court or Coroner’s Court; or
	(d)	the Legislative Assembly Secretariat; or
	(e)	an administrative unit; or
	(f)	any other prescribed authority, other than a Territory owned corporation or a subsidiary of a Territory owned corporation; or
	(g)	a board of inquiry under the Inquiries Act 1991; or
	(h)	a judicial commission under the Judicial Commissions Act 1994; or
	(i)	a royal commission under the Royal Commissions Act 1991; or
	(j)	an entity declared under the regulations to be an agency.
8	Meaning of principal officer
For this Act, the principal officer of an agency is—
	(a)	for the Executive—the chief executive of the administrative unit that provides secretariat support to the Executive; or
	(b)	for the Supreme Court—the Chief Justice; or
	(c)	for the Magistrates Court or Coroner’s Court—the Chief Magistrate; or
	(d)	for the Legislative Assembly Secretariat—the clerk; or
	(e)	for an administrative unit—the chief executive of the administrative unit; or
	(f)	for a royal commission, board of inquiry or judicial commission—the chief executive of the administrative unit that provides secretariat support to the Executive; or
	(g)	for any other entity—the person declared under the regulations to be the principal officer for the entity.
9	Meaning of record of an agency
	(1)	For this Act, a record of the Executive is a record, in written, electronic or any other form, under the control of the Executive or that it is entitled to control, kept as a record of its activities, whether it was created or received by the Executive, and includes a record created or received by a Minister as a member of the Executive, but does not include—
	(a)	a record related to the Minister’s personal or political activities; or
	(b)	a record that was created or received by the Minister only in the Minister’s capacity as a member of the Legislative Assembly.
	(2)	For this Act, a record of an agency other than the Executive is a record, in written, electronic or any other form, under the control of the agency or to which it is entitled to control, kept as a record of its activities, whether it was created or received by the agency.
10	Meaning of records management
	(1)	For this Act, records management, in relation to an agency, is the managing of records of the agency—
	(a)	to meet its operational needs; and
	(b)	to ensure its records are managed and, if appropriate, preserved in accessible form—
	(i)	to allow public access to them consistent with the principles of the FOI Act; and
	(ii)	for the benefit of future generations.
	(2)	Records management covers, but is not limited to, the creation, keeping, protection, preservation, storage and disposal of, and access to, records of the agency.
11	Meaning of control and entitled to control of a record
	(1)	For this Act, an agency has control of a record if the agency has possession of the record.
	(2)	For this Act, an agency is entitled to control a record if it is entitled to possession of the record.
12	Records to which Act applies
This Act applies to a record of an agency whenever it was made.
Division 2.2	Obligation of principal officers
13	Principal officers must ensure Act complied with
The principal officer of an agency must ensure that the agency complies with this Act in relation to its records.
Note	A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001, s 104).
Division 2.3	Records management
14	Agencies to make and keep records
An agency must make and keep full and accurate records of its activities.
15	Agencies to ensure accessibility of information 
An agency must take the steps necessary to ensure that the information in its records continues to be accessible in accordance with the FOI Act and this Act.
16	Approved records management programs
	(1)	An agency must have an approved records management program.
	(2)	The approved records management program must include arrangements—
	(a)	for ensuring that the agency complies with this Act and the records management program; and
Note	A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001, s 104).
	(b)	for establishing normal practices and procedures for the exercise of functions of the agency in relation to its records (normal administrative practices), including the disposal of records; and
	(c)	for telling the director about any arrangements entered into with an entity that is not an agency to carry out any aspect of its records management; and
	(d)	under which the director may examine the operation of the records management program and the agency’s compliance with this Act and the records management program; and
	(e)	for the resolution of disputes about whether the agency is complying with this Act or the records management program; and
	(f)	to allow the director to report on the agency’s compliance with this Act and the records management program; and
	(g)	for allocating resources for the records management program; and
	(h)	for the proper care of records of the agency, particularly records of archival or enduring value; and
	(i)	for preserving records containing information that may allow people to establish links with their Aboriginal or Torres Strait Islander heritage; and
	(j)	for the regular review of records to which a declaration under section 28 (Declarations applying provisions of FOI Act) applies; and
	(k)	for the director, if asked by the agency, to provide assistance, advice and training to the agency in records management; and
	(l)	for review and replacement or amendment of the records management program.
	(3)	Subsection (2) does not limit the matters that may be included in the approved records management program.
	(4)	An agency may dispose of a record only in accordance with its records management program.
	(5)	An agency may dispose of a record mentioned in subsection (2) (i) only after consulting the council.
	(6)	An agency must comply with its records management program.
	(7)	Subsection (6) has effect despite any other Territory law, including the Inquiries Act 1991, Judicial Commissions Act 1994 or Royal Commissions Act 1991.
17	Criteria for approval of records management programs
	(1)	The principal officer of an agency may, in writing, approve a records management program for the agency if satisfied that—
	(a)	it complies with the approved standards and codes; and
	(b)	the director has approved a schedule for the disposal of records of the agency; and
	(c)	it includes the arrangements mentioned in section 16 (2) (Approved records management programs); and
	(d)	for records of an agency containing information that may allow people to establish links with their Aboriginal or Torres Strait Islander heritage—the agency has consulted with the council.
	(2)	However, the principal officer of an agency may approve an agency’s records management program even though the program does not comply with an approved standard or code, only if the director has certified in writing that the noncompliance is necessary for the agency’s operational needs.
18	Approved standards and codes for records management
	(1)	The director may, in writing, approve standards and codes for agency records management.
	(2)	Before approving a standard or code, the director must give a copy to each agency and give the agency a reasonable opportunity to comment on the standard or code.
	(3)	In deciding whether to approve a standard or code, the director must take into account any comments made by an agency.
	(4)	An approved standard or code is a notifiable instrument.
Note	A notifiable instrument must be notified under the Legislation Act 2001.
19	Approval of schedules for the disposal of records
	(1)	The director may, in writing, approve schedules for the disposal of an agency’s records.
	(2)	An approved schedule is a notifiable instrument.
Note	A notifiable instrument must be notified under the Legislation Act 2001.
20	Review of approved standards and codes 
The director must keep the approved standards and codes under review.
21	Inspection of records management programs
	(1)	The principal officer of an agency must make the agency’s records management program available for public inspection without charge during ordinary working hours at the office of the principal officer and any other place decided by the principal officer.
	(2)	This section does not require the principal officer of an agency to include in the agency’s records management program made available for public inspection information about the existence or non-existence of a document if that information would make the program an exempt document under the FOI Act, section 34 (1) or 37.
Note 	The FOI Act, s 34 deals with documents affecting relations with the Commonwealth and States and s 37 deals with documents affecting enforcement of the law and protection of public safety.
Division 1.4	Protection of records
22	Protecting records
	(1)	An agency must ensure the safekeeping and proper preservation of its records.
	(2)	An agency must ensure that its records that are in someone else’s possession are held under arrangements that provide for the safekeeping, proper preservation and return of the records.
	(3)	If an agency does not have control of a record that it is entitled to control and the record is not held under arrangements mentioned in subsection (2), the agency must take reasonable steps to recover control of the record.
	(4)	Subsection (3) does not apply if the record is under the control of someone else who has a right to control it.
23	Protection measures
	(1)	An agency must not—
	(a)	abandon or dispose of a record; or
	(b)	transfer or offer to transfer, or be a party to arrangements for the transfer of, the possession or ownership of a record; or
	(c)	damage a record; or
	(d)	neglect a record in a way that causes, or is likely to cause, damage to the record.
	(2)	However, an agency does not contravene subsection (1) by doing—
	(a)	anything in accordance with the agency’s normal administrative practice; or
	(b)	anything authorised or required to be done under this Act, or a provision of another Act, or a subordinate law, prescribed under the regulations; or
	(c)	anything with the written approval of the director or in accordance with a practice or procedure approved by the director; or
	(d)	anything in accordance with a resolution of the Legislative Assembly; or
	(e)	anything in accordance with an order or decision of a court or tribunal.
	(3)	This section prevails over an Act enacted before the commencement of this section.
	(4)	An Act enacted after the commencement of this section is not to be interpreted as prevailing over or otherwise changing the effect of this section except so far as the Act provides expressly for it to have that effect.
24	Normal administrative practice
	(1)	Something is taken to have been done in accordance with an agency’s normal administrative practice if—
	(a)	it is done in accordance with the normal practices and procedures for the exercise of functions in the agency; and
	(b)	the practices and procedures are consistent with the agency’s approved records management program.
	(2)	However, something is taken not to have been done in accordance with an agency’s normal administrative practice if—
	(a)	it is done corruptly or fraudulently, for the purpose of concealing evidence of wrongdoing, or for any other improper purpose; or
	(b)	it is conduct declared under the regulations to be unacceptable conduct; or
	(c)	it is done in accordance with a practice or procedure declared under the regulations to be unacceptable; or
	(d)	it is done in accordance with a practice or procedure that the Minister has told the agency in writing is unacceptable.
Division 1.5	Miscellaneous
25	Records of agency that no longer exists etc
	(1)	If an agency (the original agency) is abolished or otherwise ceases to exist, the records of the agency become the records of—
	(a)	the agency that exercises the functions of the original agency to which the record most closely relates; or
	(b)	if the relevant chief executive directs that the record becomes the record of an agency—that agency.
	(2)	If a function of an agency (the original agency) is given or transferred to another agency, the records of the agency relating to the function become the records of—
	(a)	the agency to which the functions of the original agency are transferred; or
	(b)	if the relevant chief executive directs that the record becomes the record of an agency—that agency.
	(3)	If a function of an agency (the original agency) is discontinued, the records of the agency become the records of—
	(a)	the agency that exercises the functions of the original agency to which the record most closely relates; or
	(b)	if the relevant chief executive directs that the record becomes the record of an agency—that agency.
	(4)	In this section:
relevant chief executive means the chief executive of the administrative unit responsible for administering the Public Sector Management Act 1994.

Part 3	Access to records
    
26	Access to records
	(1)	A record of an agency is open to public access under this Act if 20 years has elapsed since the record, or the original of which it is a copy, came into existence.
	(2)	A person is entitled to access under this Act to a record of an agency that is open to public access.
27	Requests for access
	(1)	A person who wishes to have access to a record of an agency that is open to public access may apply to the agency.
	(2)	An agency must take reasonable steps to assist a person to make a request in accordance with this section.
	(3)	An agency to which a request is made in accordance with this section must comply with the request within a reasonable time.
28	Declaration applying provisions of FOI Act
	(1)	The director may, on application by an agency, declare a record to be a record to which the disapplied provisions of the FOI Act apply.
	(2)	The director may make the declaration only if satisfied that the record contains a document that is (or, if the disapplied provisions applied, would be) an exempt document under 1 or more of the following provisions of the FOI Act:
	(a)	section 34 (1) (Documents affecting relations with Commonwealth and States);
	(b)	section 37 (Documents affecting enforcement of the law and protection of public safety);
	(c)	section 41 (Documents affecting personal privacy);
	(d)	section 42 (Documents subject to legal professional privilege);
	(e)	section 46 (Documents disclosure of which would be contempt of Legislative Assembly or a court).
	(3)	If the director makes a declaration under subsection (1) about a record of an agency—
	(a)	a person is not entitled to access to the record under this Act; and
	(b)	for a record of a royal commission, board of inquiry or judicial commission—the FOI Act applies as if the commission or board were a prescribed authority.
Note	A record to which a declaration applies may be accessed under the FOI Act.
	(4)	In this section:
disapplied provisions means the FOI Act, part 3 (Access to documents) (other than sections 24 (Information as to existence of certain documents) and 26 (Procedure on request in respect of documents likely to affect relations between the Territory and the Commonwealth or a State)) and part 4 (Exempt documents).
29	Giving access to records under this Act
	(1)	If a person is entitled to access under this Act to a record of an agency, the person is entitled to be given access to the record by being given—
	(a)	a reasonable opportunity to inspect the record; or
	(b)	a copy of the record; or
	(c)	if the record is a record from which information may be produced or made available by electronic or other means—access to the information by use of that means; or
	(d)	if the record is a record of words in a sound recording, or in shorthand or other encoded material—a written transcript of the words.
Note	A fee may be determined under s 55 (Determination of fees) for this section.
	(2)	The person is entitled to choose how the person is to be given access, but the agency may decide to give access in another way if satisfied that access in the way chosen by the person—
	(a)	is not practicable because the agency does not have, and cannot readily obtain, equipment necessary to give access that way; or
	(b)	would be unreasonable because of the cost to the agency in giving access that way; or
	(c)	would interfere unreasonably with the agency’s operations; or
	(d)	would not be appropriate having regard to the physical nature of the record; or
	(e)	would be detrimental to the proper preservation of the record; or
	(f)	would be an infringement of copyright, other than copyright owned by the Territory or an agency.
	(3)	The agency may give access subject to conditions to ensure the safe custody and proper preservation of the record.
30	Register of records
An agency must keep a register of its records in relation to which a declaration under section 28 (Declaration applying provisions of FOI Act) is in force.
31	Protection from liability when access given
If an agency (the access provider) gives access under this Act to a record of the agency—
	(a)	an action for defamation or breach of confidence does not lie against the Territory, an agency, a public servant, or anyone else acting with the authority of the access provider, because of the giving of the access; and
	(b)	an action for defamation or breach of confidence in relation to a publication involved in, or resulting from, the giving of the access does not lie against the author of the record or anyone else because of the author or the other person having given the record to an agency; and
	(c)	the giving of the access is not, for a law about defamation or breach of confidence, an authorisation or approval of the publication of the record or its contents by the person to whom the access is given.

Part 4	Director of Territory Records
32	Establishment of position
The position of Director of Territory Records is established.
33	Functions
	(1)	The director has the following functions:
	(a)	to develop and approve standards and codes for records management by agencies;
	(b)	to assist in the development of an agency’s records management program and amendments of the program; 
	(c)	to encourage consistency in records management programs between agencies;
	(d)	on behalf of the Territory or an agency, to recover possession or control of records that, for whatever reason, are not under the control of an agency;
	(e)	to give advice to agencies about the preparation of, and to approve, schedules for the disposal of records under records management programs;
	(f)	to examine the operation of the records management program of an agency and the agency’s compliance with this Act and the program and report on the operation and compliance;
	(g)	to advise the Minister on any matter relevant to records management or the operation of this Act;
	(h)	to give assistance, advice and training to agencies in records management;
	(i)	to develop measures for the preservation of records about Aboriginal and Torres Strait Islander heritage;
	(j)	to encourage consistency between agencies in the preparation of indexes and other guides to assist in the awareness of, and access to, records;
	(k)	to encourage the development of appropriate records management training for agency staff;
	(l)	on behalf of the Territory or an agency, to enter into and manage arrangements with the National Archives of Australia or any other entity about records management;
	(m)	to assist in the development of facilities for access by the public to records; 
	(n)	to exercise any other function given to the director under this Act or any other Territory law;
	(o)	to do anything else—
	(i)	incidental, complementary or helpful to the director’s other functions; or
	(ii)	likely to improve the effective and efficient exercise of the director’s other functions.
Note 1	A provision of a law that gives an entity (including a person) a function also gives the entity the powers necessary and convenient to exercise the function (see Legislation Act 2001, s 196 (1) and dict, pt 1, defs of entity and function).
Note 2	The Annual Reports (Government Agencies) Act 1995, s 8 deals with the annual report to be given by a statutory officeholder who is declared, under that Act, to be a public authority.
	(2)	In subsection (1) (f):
report means—
	(a)	for an agency mentioned in section 7 (Meaning of agency) other than a board of inquiry or royal commission—report to the Minister; and
	(b)	for a board of inquiry or royal commission—report to the Legislative Assembly.
34	Appointment of the director
The director is appointed by the Minister.
Note 1	For the making of appointments generally, see Legislation Act 2001, div 18.3.  
Note 2	Certain statutory appointments made by a Minister require consultation with a Legislative Assembly committee and are disallowable (see Legislation Act 2001, div 18.3.3).
Note 3	A power to appoint a person to a position includes power to appoint a person to act in the position (see Legislation Act 2001, s 209).
35	Term of appointment of director
The director is to be appointed for a term not longer than 5 years.
Note	A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act 2001, s 208 and dict , pt 1, def of appoint).
36	Ending of appointment of director
The Minister may end the director’s appointment—
	(a)	for misbehaviour or physical or mental incapacity; or
	(b)	if the director becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or
	(c)	if the director is convicted or found guilty of an indictable offence; or
	(d)	if the member fails to comply with section 51 (Disclosure of interests by members of council) without reasonable excuse; or
	(e)	if the director is absent from duty for 14 consecutive days, or for 28 days in any 12 months, except on leave given by the Minister.
Note	The director’s appointment also ends if the director resigns (see Legislation Act 2001, s 210).
37	Conditions of appointment generally
The director holds the position on the conditions not provided by this Act or another Territory law that are decided by the Minister.
38	Delegation
The director may delegate the director’s powers under this Act (other than section 28 (Declaration applying provisions of FOI Act) to a public servant.
Note	For the making of delegations and the exercise of delegated functions, see Legislation Act 2001, pt 18.4.
39		Ministerial directions to the director
	(1)	The Minister may give written directions to the director about the exercise of the director’s functions.
	(2)	Before giving a direction, the Minister must—
	(a)	tell the director of the intent of the proposed direction; and
	(b)	give the director a reasonable opportunity to comment on the proposed direction; and
	(c)	consider any comments made by the director.
	(3)	The Minister must present a copy of a direction given under this section to the Legislative Assembly within 6 sitting days after the day it is given.
	(4)	The director must comply with a direction given to the director under this section.
	(5)	For the Trade Practices Act 1974 (Cwlth), this Act authorises—
	(a)	the giving of a direction under this section; and 
	(b)	the doing of, or the failure to do, anything by the director to comply with a direction under this section.
40	Arrangements for staff
	(1)	The director may arrange with the chief executive to use public servants in the administrative unit under the chief executive’s control.
	(2)	The Public Sector Management Act 1994 applies to the management by the director of public servants the subject of an arrangement under subsection (1).

Part 5	Territory Records Advisory Council
Division 5.1	Establishment, functions and members of council
41	Territory Records Advisory Council
There is a Territory Records Advisory Council.
42	Functions of council
The functions of the council are to advise the director about—
	(a)	the development and review of standards and codes for agency records management; and
	(b)	the disposal of agency records; and
	(c)	the preservation of agency records about Aboriginal and Torres Strait Islander heritage.
43	Membership of council
The council consists of—
	(a)	the director; and 
	(b)	not less than 4, and not more than 8, members (the appointed members) appointed by the Minister under section 44.
44	Appointed members of council
	(1)	The Minister must appoint as a member at least 1 person to represent each of the following:
	(a)	agencies;
	(b)	professional organisations interested in records management and archives;
	(c)	community associations interested in historical or heritage issues;
	(d)	entities interested in Aboriginal and Torres Strait Islander heritage.
Note 1	For the making of appointments generally, see Legislation Act 2001, div 18.3.  
Note 2	Certain statutory appointments made by a Minister require consultation with a Legislative Assembly committee and are disallowable (see Legislation Act 2001, div 18.3.3).
Note 3	A power to appoint a person to a position includes power to appoint a person to act in the position (see Legislation Act 2001, s 209).
	(2)	The person appointed to represent entities mentioned in subsection (1) (d) must be an Aboriginal or Torres Strait Islander.
45	Chairperson and deputy chairperson
	(1)	The Minister must appoint—
	(a)	an appointed member to be chairperson; and
	(b)	another appointed member to be deputy chairperson
	(2)	A person appointed to be chairperson or deputy chairperson ceases to hold office if the person ceases to be an appointed member.
46	Term of appointment of appointed members
An appointed member is to be appointed for a term of not longer than 3 years.
Note	A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act 2001, s 208 (1) (c) and dict, pt 1, def of appoint).
47	Ending of appointment of appointed members
	(1)	The Minister must end the appointment of an appointed member if satisfied that the member is no longer an appropriate person to represent the relevant group of entities mentioned in section 44 (1) (a), (b), (c) and (d) (Appointed members of council).
	(2)	The Minister may end the appointment of an appointed member—
	(a)	for misbehaviour or physical or mental incapacity; or
	(b)	if the member is absent for 3 consecutive meetings of the council without reasonable excuse; or
	(c)	if the member is convicted or found guilty of an indictable offence; or
	(d)	if the member fails to comply with section 51 (Disclosure of interests by members of council) without reasonable excuse.
Note	A member’s appointment also ends if the member resigns (see Legislation Act 2001, s 210).
48	Conditions of appointment generally
An appointed member holds the position on the conditions not provided by this Act or another Territory law that are decided by the Minister.
Division 5.2	Proceedings of council
49	Time and place of meetings of council
	(1)	The council is to meet at the times and places it decides.
	(2)	However, the council must meet at least 4 times a year.
	(3)	The chairperson—
	(a)	may at any time call a meeting of the council; and
	(b)	must call a meeting if asked by the Minister, the director or at least 3 appointed members.
	(4)	If the chairperson is not available for any reason to call a meeting of the council, the deputy chairperson may call the meeting.
50	Procedures governing proceedings of council
	(1)	The chairperson of the council presides at all meetings of the council at which the chairperson is present.
	(2)	If the chairperson is absent, the deputy chairperson presides.
	(3)	If the chairperson and deputy chairperson are both absent, the member chosen by the members present presides.
	(4)	Business may be carried out at a meeting of the council only if 3 appointed members are present.
	(5)	At a meeting of the council each appointed member has a vote on each question to be decided.
	(6)	A question is to be decided by a majority of the votes of the appointed members present and voting but, if the votes are equal, the member presiding has a casting vote.
	(7)	The council may hold meetings, or allow members to take part in meetings, by telephone, closed-circuit television or another form of communication.
	(8)	A member who takes part in a meeting conducted under subsection (7) is taken to be present at the meeting.
	(9)	A resolution of the council is a valid resolution, even though it was not passed at a meeting of the council, if—
	(a)	all appointed members agree, in writing, to the proposed resolution; and
	(b)	notice of the resolution is given under procedures decided by the council.
	(10)	The council must keep minutes of its meetings.
	(11)	The council may conduct its proceedings (including its meetings) as it otherwise considers appropriate.
51	Disclosure of interests by members of council
	(1)	This section applies to a member of the council if—
	(a)	the member has a direct or indirect financial interest in an issue being considered, or about to be considered, by the council; and
	(b)	the interest could conflict with the proper exercise of the member’s functions in relation to the council’s consideration of the issue.
	(2)	As soon as practicable after the relevant facts come to the member’s knowledge, the member must disclose the nature of the interest to a meeting of the council.
	(3)	The disclosure must be recorded in the council’s minutes and, unless the council otherwise decides, the member must not—
	(a)	be present when the council considers the issue; or
	(b)	take part in a decision of the council on the issue.
	(4)	Any other member who also has a direct or indirect financial interest in the issue must not—
	(a)	be present when the council is considering its decision under subsection (3); or
	(b)	take part in making the decision.
	(5)	Within 14 days after the end of each financial year, the chairperson of the council must give the Minister a statement of any disclosure of interest made under this section during the financial year.

Part 6	Miscellaneous
    
52	Secrecy
	(1)	In this section:
court includes any tribunal or other entity having power to require the production of documents or the answering of questions.
person to whom this section applies means a person who is or has been—
	(a)	the director; or
	(b)	an appointed member of the council; or
	(c)	anyone else who has exercised a function under this Act.
produce includes permit access to.
protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the person’s position under this Act or the exercise of a function under this Act.
	(2)	A person to whom this section applies must not—
	(a)	make a record of protected information; or
	(b)	directly or indirectly, divulge or communicate to a person protected information about someone else;
unless the record is made, or the information divulged or communicated, in relation to the exercise of a function, as a person to whom this section applies, under this Act or another Act.
Maximum penalty:  50 penalty units, imprisonment for 6 months or both.
	(3)	Subsection (2) does not prevent a person to whom this section applies from divulging or communicating protected information to a person about someone else with the consent of the other person.
	(4)	A person to whom this section applies is not required—
	(a)	to divulge or communicate protected information to a court; or
	(b)	to produce a document containing protected information to a court;
unless it is necessary to do so for this Act or another Act.
53	Secrecy about information acquired under other Acts
	(1)	The provisions of another Act imposing restrictions or obligations of secrecy or nondisclosure of information acquired in the course of the administration of that Act apply to a person who, because of the person’s position under this Act or in the exercise of functions under this Act, has access to the information because of the information having been acquired in the course of the administration of the other Act.
	(2)	For subsection (1), the person who has access to the information in the exercise of functions under this Act is taken to be a person engaged in the administration of the other Act.
	(3)	Subsection (1) does not prevent—
	(a)	the giving of access to records under part 3 (Access to records); or
	(b)	the preparation and dissemination of guides and aids to finding information contained in the records.
54	Protection from liability 
	(1)	In this section:
official means—
	(a)	the principal officer of an agency; or
	(b)	the director; or
	(c)	an appointed member of the council; or
	(d)	anyone else exercising a function under this Act.
	(2)	An official does not incur civil or criminal liability for an act or omission done honestly and without negligence for this Act.
	(3)	A civil liability that would, apart from this section, attach to an official attaches instead to the Territory.
55	Determination of fees
	(1)	The Minister may, in writing, determine fees for this Act.
Note	The Legislation Act 2001 contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).
	(2)	A determination is a disallowable instrument.
Note	A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.
56	Approved forms
	(1)	The Minister may, in writing, approve forms for this Act.
	(2)	If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.
	(3)	An approved form is a notifiable instrument.
Note	A notifiable instrument must be notified under the Legislation Act 2001.
57	Regulation-making power
The Executive may make regulations for this Act.
Note	Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.
58	Review of the Act
	(1)	The Minister must review the operation of this Act as soon as practicable after 5 years after the commencement of this Act.
	(2)	The Minister must present a report on the outcome of the review to the Legislative Assembly within 6 months after the end of the 5 years.
	(3)	This section expires 6 years after the day it commences.

Part 7	Amendment of Freedom of Information Act 1989
59	Act amended in pt 7
This Part amends the Freedom of Information Act 1989.
60	New section 6A, part 1
insert
6A	How Act applies to certain older records 
	(1)		The disapplied provisions do not apply to a record of an agency if 20 years have elapsed since the record, or the original of which it is a copy, came into existence unless, before the end of the 20 years, the director makes a declaration (a section 28 declaration) under the Territory Records Act 2002, section 28 that the disapplied provisions apply.
	(2)	However, if the director makes the declaration, part 4 of this Act (other than an excepted provision) ceases to apply to the record at the end of 20 years after the making of the declaration.
	(3)	If—
	(a)	the disapplied provisions do not apply to a record of an agency because 20 years have elapsed since the record, or the original of which it is a copy, came into existence and the director did not make a section 28 declaration before the end of the 20 years; but 
	(b)	the director makes a section 28 declaration in relation to the record after the end of the 20 years;
the disapplied provisions again apply to the record.
	(4)	However, if the director makes the declaration, part 4 of this Act (other than an excepted provision) does not again apply to the record.
	(5)	In this section:
agency—see the Territory Records Act 2002, dictionary.
director—see the Territory Records Act 2002, dictionary.
disapplied provisions means part 3 (other than sections 24 and 26) and part 4.
excepted provisions means the following provisions:
	(a)	section 34 (1) (Documents affecting relations with Commonwealth and States);
	(b)	section 37 (Documents affecting enforcement of the law and protection of public safety);
	(c)	section 41 (Documents affecting personal privacy);
	(d)	section 42 (Documents subject to legal professional privilege);
	(e)	section 46 (Documents disclosure of which would be contempt of Legislative Assembly or a court).
record—see the Territory Records Act 2002, dictionary.

Dictionary
(see s 4)
agency—see section 7 (Meaning of agency).
appointed member—see section 43 (b) (Membership of council).
approved records management program means a records management program approved under section 16 (Approved records management programs).
approved code means a code approved under section 18 (Approved standards and codes for records management).
approved standard means a standard approved under section 18 (Approved standards and codes for records management).
arrangement includes a contract.
control, of a record—see section 11 (Meaning of control and entitled to control of a record).
council means the Territory Records Advisory Council.
director means the Director of Territory Records.
disposal, of a record, includes the deletion or destruction of the record from a record keeping system.
entitled to control, of a record—see section 11 (Meaning of control and entitled to control of a record).
FOI Act means the Freedom of Information Act 1989.
member means a member of the council.
normal administrative practices—see section 24 (Normal administrative practice).
prescribed authority—see the Freedom of Information Act 1989, section 4 (1), definition of prescribed authority.
principal officer—see section 8 (Meaning of principal officer).
record—see section 9 (Meaning of record of an agency).
records management—see section 10 (Meaning of records 
management). 

Endnotes
Republications of amended laws
1	For the latest republication of amended laws, see www.legislation.act.gov.au.
Penalty units
2	The Legislation Act 2001, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

© Australian Capital Territory 2002