New Rules and Recordkeeping

See, eg, Human Rights and Equal Opportunity Commission, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997); Senate Standing Committee on Community Affairs, Parliament of Australia, Lost Innocents: Righting the Record, 30 August 2001; Senate Standing Committee on Community Affairs, Parliament of Australia, Forgotten Australians: A Report on Australians who experienced institutional or out-of-home care as children, 30 August 2004; Ombudsman Victorian , Investigation into the Storage and Management of Ward Records by the Department of Human Services [Ward Records], March 2012; Queensland, Child Protection Commission of Inquiry, Report, 1 July 2013 (‘the Heiner affair’).

See the various research papers of the Royal Commission <www.childabuseroyalcommission.gov.au>.

Eberhard Kim , ‘Unresolved Issues: Recordkeeping recommendations arising from Australian commissions of inquiry into the welfare of children in out-of-home care, 1997–2012’ (2015) 43(1) Archives and Manuscripts 4.

Explanatory Memorandum, Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Bill 2014 (Vic) 1.

This is otherwise known as the ‘Ellis defence’ based on Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor [2007] NSWCA 11; see Morrison Andrew , ‘The Ellis Defence: How the Catholic Church evades liability’ (2014) 124 Precedent 15.

Explanatory Memorandum, Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Bill 2014 (Vic) 1.

Civil Procedure Act 2010 (Vic) s 55B.

Civil Procedure Act 2010 (Vic) s 55C.

Victoria, Parliamentary Debates, Legislative Assembly, 6 February 2014, 228 ( Clark Mr ).

Ibid.

The Hon Justice Peter Vickery, ‘Recent Developments in Discovery in Commercial Litigation’, VICBAR CPD Seminar, 5 February 2015 [80], <http://www.judicialcollege.vic.edu.au/sites/default/files/VICBAR%20CPD%20Seminar%20[5%20Februarv%202015]%20[FINAL%20VERSION].pdf>.

Eberhard , above n 3.

Australian Law Reform Commission (‘ALRC’), Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77(1995) [5.12].

ALRC, A Review of the Federal Archives Act 1983 (May 1998) 34.

Ibid; see also, Commonwealth Ombudsman, ‘Needs to Know’: Own Motion Investigation into the Administration of the Freedom of Information Act 1982 in Commonwealth Agencies (June 1999) [3.85]–[3.96].

Australian National Audit Office, Records Management in the Australian Public Service (2012) [1.6].

Ibid.

Public Records Act 1973 (Vic) s 19(1)

Ibid (offence to move, etc, public record without authority).

State Records Act 1997 (SA) s 17 (damaging, etc, of official records).

Privacy Act 1988 (Cth) ss 6C (definition of ‘organisation’), 6D – 6EA.

Privacy Act 1988 (Cth) s 7B(5).

ALRC, Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77 (1995) [5.8].

See, eg, s 28 concerning a report regarding a child's wellbeing.

Records management for organisations funded under the service agreement 2012–2015, Fact Sheet I: General information on recordkeeping.

McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 (22 March 2002).

See further, Harvey Matthew Le Mire Suzanne , ‘Playing for Keeps? Tobacco Litigation, Document Retention, Corporate Culture And Legal Ethics’ (2008) 34 (1) Monash University Law Review 163.

Sallmann Peter , Report on Document Destruction and Civil Litigation in Victoria (Crown Counsel Victoria, 2004).

Ibid.

See Crimes (Document Destruction) Act 2006 (Vic).

See Evidence (Document Unavailability) Act 2006 (Vic). These changes are discussed in detail in Sinclair Karen , ‘Victoria: The Keep-It-All State? The Impact on Archives of the Crimes (Document Destruction) Act 2006 and the Evidence (Document Unavailability) Act 2006’ (2010) 69 Archivaria 117.

See also, s 255 regarding corporate liability.

(2002) VAR 330.

(2002) VAR 330, [34]. See also Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (no 1) (Review and Regulation) [2013] VC AT 1234 [38].

Freedom of Information Act 1982 (Vic) s 25A.

See The Age Company Pty Ltd v CenlTex (Review and Regulation) [2013] VCAT 288 [45].

For a useful critique of workload provisions, see Chen Bruce , ‘Refusing to Process Voluminous Requests: Contrary to the Spirit of Freedom of Information?’ (2011) Monash University Law Review 132.

See Mitchell Andrew Voon Tania , ‘Someone to Watch Over Me: The Use of FOI Requests by the Tobacco Industry’ (2014) 22 Australian Journal of Administrative Law 18.

Freedom of Information Act 1982 (Vic) s 11(1)(i).

Mitchell Voon , above n 38.

[2007] FCA 1062.

Sackville Ronald , ‘Mega-Lit: Tangible Consequences Flow from Complex Case Management’ (2010) 48(5) Law Society Journal 47 cited in ALRC, Discovery of Documents in Federal Courts, Report 115 (March 2011) 13. This case was also the subject of critical discussion in Mansfield Justice John , ‘Opportunities & Challenges: Evidence in Cases under the Trade Practices Act 1974’ (Competition Law Conference, Shangri-La Hotel, Sydney, 24 May 2008) 8–19.

Sackville , above n 42.

ALRC, Discovery of Documents in Federal Courts, Report 115 (March 2011) 18.

Ibid 20.

Public Record Office Victoria, ‘Records management on trial? Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014’: Public Records Office Blog (22 September 2014) <http://prov.vic.gov.au/government-recordkeeping/records-management-on-trial-justice-legislation-amendment-discovery-disclosure-and-other-matters-act-2014-2>.

Ibid.

Vickery , above n 11 [80].

Ibid.