About the State Records Act 1998

The Act commenced on 1 January 1999. Part 4 (concerned with transfer of archives to), commenced in July 1999. The Act replaced the Archives Act 1960.

The Museums of History NSW Act 2022 amended the State Records Act and established Museums of History NSW as the agency responsible for the maintenance and care of the State’s archival collection. State Records NSW remains the agency responsible for the regulation and monitoring of government recordkeeping in NSW. The Act commenced on 31 December 2022. Elements of Part 4 concerning the transfer of State archives and open access, commenced on 1 January 2024.

The description of the key provisions of the Act detailed below incorporates the amendments to the State Records Act pursuant to the Museums of History NSW Act.

Key provisions

Part 1 - Preliminary

Part 1 of the Act defines key terms and concepts, and the application of the Act.

The Act applies to public sector bodies referred to as 'public offices' and the records they generate as 'State records'.

Public offices include, but are not limited to:

• any department or office of the government of NSW
• any public statutory body, corporate or unincorporated
• State owned corporations
• local government
• the public health system, and
• universities.

For detailed information visit Public offices under the Act.

Part 2 - Records management

Part 2 of the Act sets out the records management responsibilities of public offices.

The Act requires CEOs of public offices to ensure compliance with the Act and public offices to:

• make and keep full and accurate records
• institute a records management program under standards and codes of best practice for records management.
• ensure the safe custody and proper preservation of State records
• maintain accessibility to digital and other technology dependent records
• plan with State Records NSW for monitoring and reporting on the implementation of the public office's records management program
• assess its recordkeeping processes and records management program, and to report the findings to State Records NSW, when directed to do so. 

Part 3 - Protection of State records

Part 3 of the Act deals with protection of State records. A State record must be protected from neglect, unauthorised loss, destruction, damage, alteration or transfer.

Under the Act the disposal, alteration or transfer of State records is only permitted in certain circumstances, notably:

• approval by State Records NSW
• via legislation under which a public office operates, or
• through 'normal administrative practice' as defined in the State Records Regulation 2024.

Part 4 - Control of State records

Part 4 of the Act ensures that records of continuing value that are no longer in use by the public office that generated them are controlled and properly managed as State archives.

Under the Act, records more than 25 years old are assumed to be no longer in use for official purposes in the public office.

If a record older than 25 years is still being used by a public office, that organisation must make a determination to that affect and notify Museums of History NSW as soon as practicable.

Note that a record may be no longer in use even if it is less than 25 years old.

A public office can pass records to Museums of History NSW’s control either by transferring them to its custody or by entering an agreement whereby some other body (which may be a public office) has custody.

Part 5 - Recovery of State records

Part 5 of the Act ensures the protection of estrays. Estrays are State records which have been abandoned, removed from or transferred out of the control of the responsible public office without lawful authority. 

The Act provides Museums of History NSW with power to inspect and provide direction to protect or recover estrays both within and outside of New South Wales. The Act also allows interstate government archives to recover similar interstate material within New South Wales.

Part 6 - Public access to State records

Part 6 of the Act ensures that there is a balance between the public’s entitlement to access State records and protection of sensitive and confidential information for an appropriate period.

The Act promotes the principle of open government by making all records open to the public by default after 20 years.

If public offices determine that certain records should be closed to the public for longer than 20 years, they must provide a closed to public access direction to Museums of History NSW.

Museums of History NSW can request a public office to have an access direction reviewed by the Minister responsible for the public office.

Part 7 - The State Records Authority of NSW

Part 7 of the Act establishes State Records Authority NSW and defines its principal functions.

The Act also establishes the Board of State Records NSW and provides information on its composition and functions.

For more information visit State Records NSW and State Records NSW Board.

Part 8 - Miscellaneous

Part 8 comprises a number of miscellaneous provisions such as:

• duty of confidentiality
• copyright in State archives
• proceedings for offences.