managing compliance & risk in a complex legal environment: the new regulatory framework for...
TRANSCRIPT
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Managing Compliance & Risk in a Complex Legal Environment:
The new regulatory framework for public sector recordkeeping in Victoria
Kathy Sinclair, Policy Officer, Public Record Office Victoria
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Introduction
• In Victoria, recordkeeping requirements in the public sector have become both more prominent and more directive in the last decade
• Agencies have adapted to take into account these new or changed requirements … but how has that affected day to day business?
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Outline of presentation
• What are the main ways in which things have changed?
• What are key areas of forthcoming change?
• What impact has this had on Victorian organisations, particularly government sector?
• How can organisations integrate these new requirements into their recordkeeping practice?
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Overall theme of legal changes
• Probity• Ethical practice being supported in both public and private
sectors by solid and recorded processes
• Accountability• Government actions and decisions being transparent
• Protection of citizens’ rights• Individuals’ rights to proper treatment being enforced
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Relationship to government policy focus
• These themes have permeated government policy and legislative change - not just in the recordkeeping area
• Government has a stated commitment to improving accountability and transparency
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3 key types of changes
• Rights protection measures
• Probity, technology & business utilitymeasures
• Legal changes to the status and character of records / their management
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1. Rights protection measures
• Document Destruction
• Information Privacy
• Health records
• Whistleblowers
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Document Destruction
• Unique (at this stage) to Victoria• Outflow of McCabe v BAT actions and resultant
Salman report• Crimes (Document Destruction) Act 2006 & Evidence
(Document Unavailability) Act 2006• The Acts deal with the legality of document
destruction and establish more stringent requirements at law than previously existed
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Information Privacy
• Information Privacy Act 2000 (public sector)
• Commonwealth Privacy Act covers private sector
• Designed to protect an individual’s interest in the privacy of information about themselves
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Health sector
• Health Records Act 2001:creates a framework to protect the privacy of individuals' health information
• 10 Health Privacy Principles (similar to IPPs)
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Whistleblowers protection
• Whistleblowers Protection Act 2001
• Designed to protect the integrity of Whisteblowers investigations processes and subsequent enquiries
• Implications across other investigation types also
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2. Probity, technology & business utility measures
• Electronic Transactions
• Changes to FOI
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Electronic transactions
• Electronic Transactions Act 2000
• Same principles as Commonwealth and other state legislation
• Endeavouring to reduce / remove any bias against transactions in electronic form
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FOI
• FOI has imposed, since its inception, the potential for significant recordkeeping costs for agencies
• Interaction between FOI and privacy (as between privacy and public records) has been problematic at times for agencies
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3. Legal changes to the status and character of records / their management
a) Copyright / DRM
b) Proposed changes to Evidence law
c) Possible changes to Public Records Act (Auditor- General’s review)
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Copyright / DRM
• Changes to copyright law as a result of Australia-US Free Trade Agreement 2004
• This has become a very thorny issue for organisations (public AND private) using digital rights management (DRM)
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Evidence law
• Victoria is still a common-law evidence state (one of very few remaining)
• VLRC report of February 2006 recommended Victoria adopt a version of the Commonwealth / NSW Uniform Evidence Law (UEL)
• Review and revision of Evidence Act expected in coming 5 years (but no program of review yet announced)
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Public Records
• Public Records Act 1973 is the authorising legislation for state Public Record Office and its standards
• Victorian Auditor-General is auditing Victorian government recordkeeping in 2007-08
• Public Records Act may also be reviewed as part of Bracks government commitment to reviewing all Acts more than 10 years old
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How has it all complicated recordkeeping?
• More requirements, which imposes more layers of action around records management
• Undefined or ambiguous requirements lead to inability to act
• Potentially / apparently contradictory requirements• Many new requirements have yet to be teased out /
tested and interpreted in court
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How has it all assisted recordkeeping?
• Provided excellent opportunities to raise the profile of recordkeeping within government
• Led to formation of informal policy and advisory links between PROV and other regulatory bodies (better service for agency records managers)
• May end up being the key driver for extra resourcing for recordkeeping (pending Auditor’s report)
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How have organisations dealt with these changes?
• Greatly increased procedural and policy structure to recordkeeping – Eg. every public sector organisation must have a
Privacy Policy– as organisations start to apply the technological
possibilities and increasingly acquire EDRMS, the opportunity exists for process and procedures to be built in
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How have organisations dealt with these changes?
• Some increase in overall awareness of the value of recordkeeping and the gaps in the way it is currently resourced / performed (Auditor-General’s audit is responding to this)
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How have organisations dealt with these changes?
• Increase in training, information provided, and role of recordkeeping as a part of upfront induction programs– Inclusion of detailed recordkeeping responsibilities
in induction– PROV’s training program growing rapidly,
including Certificate programs (which cover recordkeeping regs)
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Conclusion
• Victorian public sector records management now operates within a tighter web of compliance than ever before
• The pain of legislative change can be more than offset by the potential gains - if we take the opportunity offered
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More information
• PROV’s Advices to Agencies: http://www.prov.vic.gov.au/records/standards.asp#guides
• Contact PROV: Kathy Sinclair