Key messages in this chapter
- Good recordkeeping helps agencies meet their accountability, commercial and legal obligations.
- There is a compelling business case for good recordkeeping—it provides the means to access the information needed to make the right decisions at the right time, increasing productivity and improving the bottom line.
- Records need to be created and kept when due care and diligence require it.
Governance and accountability
Good recordkeeping is a necessary element of good governance. Good recordkeeping supports efficiency and accountability through the creation, management and retention of meaningful, accurate, reliable, accessible and durable records of important government activities and decisions.
Good records are necessary for government to keep track of what it has done, so that future activities can be examined on the basis of a comprehensive and accurate knowledge of what has occurred and what has been decided in the past.
Retaining the corporate memory of government, in the form of records, helps public servants perform their duties efficiently, effectively and ethically, and ensures that we maintain audit trails necessary for public accountability and transparency.
Good recordkeeping also helps to protect the legal, financial and other interests of government. Ultimately, good recordkeeping saves the government, and hence the community, money. Good records are vital corporate and national assets and good recordkeeping is essential for a useful, reliable and durable historical record.
Legislated APS Values
The enactment of the Public Service Act 1999 was part of the Australian Government’s public service reform agenda which, amongst other things, was designed to improve accountability in the APS.
To do this, the Act expressly set out, for the first time in legislation, the important values and culture that the Parliament expects of the APS, and provided a clear statement to those in the APS, and to the Australian people, of the conduct that is expected of public servants. These APS Values define the public service ethos and provide the philosophical underpinnings of today’s APS.
The integration of the APS Values into the way the APS works is an essential factor in achieving high performance. The APS Values provide the real basis and integrating element of the public service—its professionalism, integrity and impartial and responsive service to the government of the day.
Because the APS Values are set out in legislation, they have legal as well as moral weight.7 Agency heads are obliged to uphold and promote the APS Values and APS employees are required, under the APS Code of Conduct, to behave at all times in a way which upholds the APS Values.
Responding to Ministers and the Parliament
The Public Service Commissioner’s Directions 19998 assist agencies to determine the scope and application of the APS Values. It is important to note that ‘agency heads and APS employees must comply with Commissioner’s Directions’.9
While all the APS Values apply to all aspects of APS employment, the following Value is particularly relevant to recordkeeping:
… the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament, and the Australian Public (see s. 10(1)(e) of the Public Service Act)
Guidance provided by the Commissioner explains what this Value requires and its relevance to APS recordkeeping:
- Ministers are accountable to Parliament for the effectiveness of their portfolios, but for operational efficiency they must be able to delegate substantial powers to staff in APS agencies.
- APS staff are accountable for the way in which they administer government policies. Ministers must therefore be able to have confidence in the performance of the APS and must also be able to account to Parliament, and through it to the public, for actions undertaken by the APS on the Government’s behalf.10
For agency heads and APS employees, the practical application of this Value and its associated Direction above, means that:
- agencies must meet their statutory and administrative reporting obligations
- agencies are able to account for the effective, efficient and ethical use of resources provided to deliver programs
- staff understand the accountability framework in which they operate
- agencies are able to provide timely, regular and comprehensive information and other support to Ministers to help them meet their accountability obligations to Parliament and the public
- agencies maintain efficient and effective management systems, including goal setting and high quality performance management
- agencies are able to account effectively to review bodies for the administration of government policies and utilisation of public resources.11
It is vital to the good reputation of the APS that we can respond quickly and accurately, when our Ministers require it, to requests or demands from the Parliament, and that our recordkeeping systems and practices allow us to meet these obligations.
Indicators that an agency and its employees are meeting their accountability requirements under the Public Service Act are that:
- an agency’s reporting arrangements provide a clear account of the agency’s performance and the effective, efficient and ethical use of resources for the achievement of outputs and outcomes in the reporting period
- an agency is able to demonstrate that due process has been followed in its actions and decisions, including through the existence and maintenance of good recordkeeping systems.12
In a flexible operating environment, the effectiveness of the APS is measured through the achievement of its outputs and outcomes within the integrity framework provided by the Values.
The agency’s reporting arrangements (i.e. its records) provide an account of the effectiveness of its outputs during the reporting period, and an agency should, through its records, be able to demonstrate that it has directed its resource priorities towards achieving the outcomes expected by the government.
The APS Code of Conduct
Public servants occupy positions of trust within the community. Many public servants have access to significant public resources and exercise judgements that can materially affect large numbers of citizens. The public and the Parliament need to be confident that public servants, in exercising their functions, have the highest standards of conduct and that any deviations from those standards are addressed and dealt with in a fair and systematic way.
The APS Code of Conduct articulates the standards of behaviour required of APS staff and is also a measure against which a public servant’s behaviour can be tested.
In Australia, the common law duties which generally apply to everyone are often supplemented by legislation specific to particular enterprises. Most relevant in an APS employment context is the Public Service Act, particularly s. 13 which sets out the APS Code of Conduct.
With respect to recordkeeping, the Code provides that:
- an APS employee must act with care and diligence in the course of APS employment (this provision essentially codifies the common law duty to take reasonable care, which means that if an APS employee breaches their duty of care in the course of their APS employment, they have breached the APS Code of Conduct as well)
- an APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws
- an APS employee must use Commonwealth resources in a proper manner
- an APS employee must at all time behave in a way that upholds the APS Values and the integrity and good reputation of the APS.13
Requirements to create certain records
All APS employees (including the Senior Executive Service, agency heads 14 and relevant statutory office holders) are bound by the APS Values and Code of Conduct.
Those in the Senior Executive Service have the additional function, by personal example and other appropriate means, of promoting and upholding the APS Values and compliance with the Code of Conduct of the Public Service Act.15
This means that APS employees (including the Senior Executive Service), agency heads and relevant statutory office holders must create, keep and maintain a record of a particular decision, meeting, transaction or occurrence if:
- the law requires it (i.e. a specific statutory provision requires)
- a lawful and reasonable direction given by someone who has authority to give such a direction requires it (e.g. if your supervisor directs you to prepare minutes of a meeting)
- due care and diligence require it16
- the APS Values or the maintenance of the integrity and the good reputation of the APS require it.
In extreme cases, a failure to keep good records, or misuse Commonwealth records, may well expose the employee to Code of Conduct, as well as civil or even criminal proceedings (see the section below on ‘Recordkeeping and the law’).
As indicated in points 1 and 2 above, in some areas the law is very prescriptive, and in those circumstances, obligations to create records are clear cut, for example:
- Section 13 of the Administrative Decisions (Judicial Review) Act 1977 requires, in certain circumstances, the provision of a written ‘statement of reasons’ for an administrative decision
- the Financial Management and Accountability Act Regulation 12 requires the recording in writing, as soon as practicable, of the terms of an approval of a proposal to spend ‘public money’
- Section 69 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 requires an employer to create and maintain records of all accidents and dangerous occurrences, of which the employer is required by s. 68 to notify the Safety, Rehabilitation and Compensation Commission
- the minutes of health and safety committee meetings must be kept and retained for not less than three years pursuant to s. 34 (7) of the Occupational Health and Safety (Commonwealth Employment) Act 1991
- Regulation 4.19 of the Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations 1994 provides that an employer must ensure that records are made and kept concerning relevant tests, maintenance, inspection and commissioning of plant while it is operable at work
- the regulations also oblige an employer to keep and maintain a register at each workplace for hazardous substances that are used at work (Regulation 6.14).
But such explicit legal obligations are by far the exception and not the rule. In general, legislation in this area is principles-based, rather than prescriptive.
Agencies can give directions through managers, Chief Executive Instructions, or mandatory policies on recordkeeping obligations regarding certain transactions or subject matters, having regard to workflow and risk analysis. Agencies should also consider arranging working environments to support these directions and so support effective recordkeeping. However, at the end of the day staff will still need to use their judgement.
Agency heads can increase the probability of staff making consistently correct judgement calls by implementing systems and supporting processes/policies that help staff identify their recordkeeping obligations and other statutory obligations specific to their legislative and operational environments.
The business case for agencies
Records as valuable assets
If only HP knew what HP knows, we would be three times more productive …
Lew Platt, former CEO of Hewlett-Packard
Increased productivity, whether by making better decisions or avoiding incorrect ones (informed by useful records), is perhaps the most obvious business case for recordkeeping.
It is in the Commonwealth’s commercial interests to keep good and useful records, in the same way it is for Hewlett-Packard, or any other multi-billion dollar enterprise.
This self-evident truth is why small, medium and big business spend a lot of money on recordkeeping, even when there is no legal requirement to keep the vast majority of records that business creates and keeps. Those records have value, and if managed properly, become a valuable asset and resource of the business and, in many cases, represent the majority of the assets or resources of a business.
Imagine having at your fingertips all the information, or better yet, the exact information you need to make the right decision, at the right time. This is a strong rationale and driver for good recordkeeping.
Of course, a good recordkeeping system will not guarantee that you have all the relevant information at your fingertips, but it will ensure that you have the means to access all the relevant information that your agency has in its possession.
The bigger the enterprise, the greater the argument for an efficient recordkeeping system (as bigger enterprises generally hold more records) and the greater the requirement for supporting resources.
The bottom line
A particular activity’s contribution to an organisation’s bottom line is one of the best indicators of the business case for that activity.
If information is an asset of the organisation, then the value of that information is almost entirely dependant on the organisation’s ability to access that information when it is advantageous to do so. Other than the ability to receive that information from the organisation’s own employees orally (and such communications, unless confirmed in writing, are typically reserved for less important matters), the only way an organisation can access its own information is through accessing its records.
Records represent the physical manifestation of a typical APS employee’s labour (e.g. the documented advice, reports, briefs, accounts, letters, emails) and are the property and a valuable asset of the Commonwealth.
The Commonwealth is obliged to use such assets for the benefit of the Australian public, within the boundaries of the law.
The appropriate and timely disposal of low-value records can also reduce storage costs for agencies.
In summary, the business case for good recordkeeping in the APS is that:
- good records are a valuable asset in their own right, and essentially make up the tangible corporate memory of an agency—the better and more focused an agency’s records are, the smarter the agency is
- good records are worth far more than the cost of their production
- good records can significantly reduce potential liability
- ensuring low-value records are not retained unnecessarily can reduce the costs of recordkeeping and storage.
Recordkeeping and the law
Obligations (and liabilities) created by knowledge
People can justifiably defend incorrect decisions made because they were not aware of facts or issues that they could not reasonably have known about. However, it is far less justifiable for decision makers to defend incorrect decisions if their employer or agency was aware of the relevant facts or issues. If such ignorance can be blamed on poor recordkeeping, the agency could be liable for any damage caused.
The courts have long held the view that the relevant state of knowledge when attributing liability for a poor decision or action of a corporation or a government agency, is the actual or ‘constructive knowledge’ of the corporation/agency, not that of the individual decision maker. This means if an employee of an agency acquires particular information in the course of their employment, that knowledge is typically attributed to the agency, whether or not the employee has properly communicated the relevant information (by recording it or otherwise) to the rest of the agency.
This, in and of itself, is sufficient basis for APS agencies to have clear policies and training for its employees so that they:
- understand that information created or received in the course of their APS employment is created/received and attributable to and must only be used for, the purposes of the Commonwealth
- understand how to communicate and record relevant and important information to and for the agency so that the agency can act on it.
APS executives need to ensure their agencies promote clear policy on recordkeeping.
APS employees have a responsibility to understand and follow their agency’s recordkeeping policy.
Duty of care
People can generally be expected to act in ways consistent with moral norms, especially when those norms also represent commonsense and prudent commercial practice. However, societies will occasionally mandate these norms and practices by law. This generally occurs where there are significant perceived benefits to the widespread adoption of these norms and practices, and/or severe consequences if they are rejected.
Most Western democracies support the concept (either under statute or general law) that nearly all citizens owe a ‘duty of care’. This requires people to take reasonable care to avoid actions (or omissions) that could cause foreseeable harm to others (e.g. physical, economic, reputation). The greater the likelihood of foreseeable harm, the greater the duty to take care.
While APS recordkeeping does not immediately spring to mind as an inherently risky activity, there are some higher risk activities which require greater levels of care, particularly those affecting the liberty, welfare, and entitlements of Australians.
APS employees have a general duty to take reasonable care. Accordingly, any failure to exercise due care and diligence with regard to recordkeeping which results in financial loss to third parties (i.e. someone other than the Commonwealth or the APS employee) may result in liability for damages (monetary compensation awarded by a court). While such damages are generally borne by the Commonwealth—through the Commonwealth’s obligations to indemnify employees who have acted in good faith—if damages arise as a result of wilful or gross negligence, the liability to pay such damages may also fall on the individual APS employee.
Clearly, where important matters (e.g. matters relating to a person’s liberty, wellbeing, legal rights, proprietary interests, income) need to be recorded accurately and comprehensively, failure to do so, if it causes the person loss, may well result in compensatory damages.
The greater or more likely the foreseeable harm, the higher the duty to comprehensively record whatever information is required to avoid the harm.
7 Public Service Act 1999, s. 13, <http://www.comlaw.gov.au>
8 Public Service Act 1999, issued under s. 11 as required, <http://www.comlaw.gov.au>
9 Public Service Act 1999, under s. 42(2), <http://www.comlaw.gov.au>
10 Public Service Commissioner’s Directions 1999, Direction 2.6
11 Public Service Commissioner’s Directions 1999, Guidelines
12 Public Service Commissioner’s Directions 1999, Guidelines
13 Public Service Act 1999, s. 13(2), (4), (8) & (11), <http://www.comlaw.gov.au>
14 Public Service Act 1999, s. 12, <http://www.comlaw.gov.au>
15 Public Service Act 1999, s. 35(2)(c), <http://www.comlaw.gov.au>
16 Due care and diligence requires creation of a record if a public servant, when presented with a particular decision, meeting, transaction or occurrence, would reasonably be expected by an ordinary person to create a record of that occurrence. While this test may appear imprecise, in practice it reflects commonsense and requires only the same level of judgement that we expect of ordinary citizens when engaged in every aspect of social or commercial interaction. If on the rare occasion an APS employee is in doubt as to whether a formal record of any particular decision, meeting, transaction or occurrence is required, prudence suggests that a record should be made, or guidance can be sought from the employee’s manager.