Following a media query on 18 December 2023, the Department of the Prime Minister and Cabinet (PM&C) identified that it had failed to transfer 78 Cabinet records from 2003 to the National Archives of Australia (NAA), in line with historical arrangements.
On 1 January 2024, Professor Glyn Davis AC, Secretary of PM&C commissioned an independent review of the transfer process for the 2003 records and to confirm all relevant records had been transferred to the NAA.1
Background
The Cabinet is the focal point of Government decision-making.2 At all relevant times, the Secretary of PM&C is the custodian of Cabinet records.3
The Archives Act 1983 (Cth) (Archives Act) sets out the legislative requirement for Commonwealth institutions to transfer Commonwealth records that have been determined to be part of the archival resources of the Commonwealth to the custody of the NAA within a specified timeframe, usually 15 years after they come into existence.4 The Review was advised that no determination has been made under section 3C of the Archives Act specifying that Cabinet records are part of the archival resources of the Commonwealth. They are instead subject to historical arrangements (which pre-date the introduction of section 3C in 2008), under which they are transferred to the NAA before they enter the ‘open access period’.
The Archives Act requires that the NAA provide public access to all eligible Cabinet records once they enter the ‘open access period’.5 For records created after 1 January 2000, the open access period for a record commences on 1 January in the year that is 21 years after the record came into existence.
Given the public interest in Cabinet deliberations, and to promote its work, the NAA conducts a proactive public release on 1 January each year of selected Cabinet records that are entering the open access period. To support the proactive release, the NAA provides access to some journalists in advance of the release, under embargo, and invites a historian to prepare an overview of the documents. The proactive public release of selected Cabinet records is not a legislative requirement. The proactive release that occurred on 1 January 2024 concerned selected Cabinet records from 2003.
Once records enter the open access period, any Commonwealth record that has not been proactively released can still be accessed on application to the NAA,6 subject to any exemption under section 33 of the Archives Act.7
Focus
While the terms of reference were narrow, we identified a number of wider considerations that impact PM&C, the NAA and quite possibly, other departments and agencies’ abilities to effectively discharge obligations under the Archives Act.
The Review focused on:
the circumstances surrounding the transfer in 2020 of the 2003 Cabinet records;
a search of relevant areas of PM&C to ensure that all 2003 Cabinet records had been transferred to the NAA; and
PM&C and NAA processes that support the transfer of Cabinet material, and the subsequent treatment of Cabinet material for proactive public release.