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Legal & Governance

Look here for articles about archives legislation and professional accountability

in reverse chronological order

Here we have two areas of interest : archival legislation and professional accountability.

Note 1 : this site is under construction.  Links that are not yet live and will be activated progressively as more content is uploaded.  Some of this content also appears on the RCRG : Records Continuum Research Group website.

Note 2 : it will be seen that almost all of the papers included in this section that post-date my 1993 “Appreciation” deal directly or indirectly with the “Heiner Affair”.  Some of my colleagues have described this variously as an obsession, mania, or even as “fanaticism”.  I make two points in rebuttal :

  1. I have not (as a close reading of what follows will show) simply repeated myself over and over which would be a hallmark of fanaticism.  My approach has undergone significant development over time and my focus by 2005, the last time I wrote about it, was on larger issues deriving from an analysis of the Affair that were dealt with quite differently in my original Appreciation.
  2. All of my writings and presentations on this subject given since that original Appreciation have been in response to an invitation, not offered spontaneously on my part.  This is hardly evidence of an unhealthy pre-occupation with the subject.  It is a happy fanatic indeed who is repeatedly invited to speak about his obsession.

Activism (2016)

Australian Society of Archivists, NSW Branch : Meet the Students – Sydney, 18 May, 2016

This short presentation was delivered to a meeting at which students currently studying for their qualifications were invited to hear practitioners speak. I was asked to talk on the subject of “Activism”.

Recordkeeping and Accountability (2005)

Archives: Recordkeeping and Society, Sue McKemmish, Michael Piggott, Barbara Reed, and Frank Upward (eds), Centre for Information Studies, Charles Sturt University, Wagga Wagga, 2005

In a review of this book, Verne Harris described my chapter as a “searing positivist critique”. It wasn’t meant to be. Those who think that I took up a position on the Heiner Affair in 1993 from which I have never deviated should read this. I took a fairly stern line during most of the 1990s and during the early 2000s when I was trying to get the ASA to face up to the issue. Most of this struggle is documented in the (now lost) aus-archivists listserv. By the time ASA began taking a more responsible position on the matter I had, in fact, moved on. I began in 1993 by seeing the Heiner appraisal as a violation of professional standards. ASA eventually issued a statement saying pretty much that. By then, however, I was asking myself more subversive questions – specifically : what are these standards, where are they written down, who enforces them? I linked this to my own dismissal as Keeper in 1990 which has been represented (and was at one time seen by me) as a defence of professional standards also. I came to believe that archivists have virtually no professional standards worthy of the name, that there is seldom any attempt to articulate them, and hence no machinery to enforce them. Most demoralising, many archivists don’t seem to notice or care about it if they do. The implication is clear : the Heiner appraisal could not violate professional standards and my dismissal in 1990 could not be in defence of them because there aren’t any. I began developing this idea in the Political Pressure Symposium at Liverpool University (2003/2004) and in the Ethical Dilemmas Symposium in Sydney (2004). It came to be fully articulated in this piece and in my 2006 paper to ASA which the ASA tried unsuccessfully to suppress.

Archivists and Accountability (2004)

(Australian Society of Archivists Annual Conference, Canberra, 16-18 September 2004). Later published: Archives and Manuscripts, 34 (2) 2006.

This was a paper delivered to the Annual Conference of the Australian Society of Archivists. It embodies the full flowering of my evolved consideration of the professional issues arising out of Heiner – viz. how well did the profession respond and how well fitted is it to apply standards of professional behaviour to future “incidents”. At bottom, this amounts to asking : what claims do archivists have to being a profession? Inter alia, the paper was highly critical of the behaviour of ASA Council – not just in relation to their initial response but also in relation to submissions it continued to make right up until the same year in which this paper was delivered. The criticism levelled at me that this was no longer topical was ludicrous. The entanglement of ASA with Heiner was on-going and their latest submission was trying to establish that the Affair was over, that professionally everything was now OK, and archivists could now be relied upon. I thought this was nonsense and said so. Some months later I received a letter from the Canberra Organising Committee acting on instruction from the ASA Council stating that they declined to include my paper in the Conference Proceedings based on legal advice that it was defamatory. Instead of closing down the “Affair” this simply added a new chapter to the unfolding saga. I took steps to accommodate any such fears with some minor changes of no great substance and sought legal counsel of my own. ASA’s action, if left unchallenged, would have been a significant blot on my professional reputation. The opinion upon which ASA acted was short and (to my mind) extraordinary. It stated, in part, that the author of the opinion was “in no position as [sic] to advise as to whether a defence of truth would succeed”. Almost anything can be defamatory. A birthday card can be defamatory. The question is not whether something is defamatory, but whether an action could succeed. In any case, I and others were able to point out that the kind of material to which exception was now being taken had appeared routinely in ASA’s publications including ASA Council’s own pronouncements on the Heiner Affair and yet they were applying to my work a standard that had not been applied to any other author in the ASA’s publications. They were told that, measured by the standard applied by ASA to other authors and to themselves, there was nothing in my piece that warranted such a departure from past practice. Moreover, I was by now taking the view that (in the absence of robust professional standards) it was inappropriate to condemn the Heiner Appraisal. I had, in effect, moved to the paradoxical position of defending the Queensland Appraisal against unwarranted, and possibly libellous, criticism from ASA itself against the Queensland Archivist (not because I thought it a good appraisal but because I thought the profession had no basis for reaching a judgement). I sought a QC’s opinion and was relieved to be told : “I cannot conceive” how available defences could not succeed. For a long time Council would not budge. Meanwhile, Mike Steemson put it up on his RIMOS website and a link to this was eventually made from the Conference Proceedings on-line. That link is now broken. Under pressure from colleagues, Council finally relented and agreed to publication in Archives & Manuscripts. The failure to apologise for the damage done to me or to reimburse me for the unnecessary expense in seeking counsel’s opinion remain unresolved issues between me and the ASA and probably will remain so until I die.

Archivists and Accountability – Postcript

Correspondence with ASA President (April 2006).

After representations to Council by a senior colleague, Council eventually agreed to publication in Archives and Manuscripts. The ASA proposed to accompany this with a public statement so self-serving as to compound their original offence. This is the hitherto unpublished correspondence that ensued. The statement was never issued.

Ethical Dilemmas in Records Management (2004)

RMAA (NSW Branch) Lunch-Time Seminar 6 April, 2004

By this time, I was moving beyond focus on the Heiner Affair – which was developing along other lines, anyway, not insignificant but not directly relevant to the professional concerns that had originally focussed my interest. When I was invited to give this presentation to a lunch-time audience, I used the occasion to develop a template for the range of moral and ethical positions that bear upon our personal and professional lives.

The Role of the Archives in Protecting the Record from Political Pressure (2003)

Political Pressure and the Archival Record, Margaret Proctor, Michael Cook, and Caroline Williams (eds), Society of American Archivists, 2005, Delivered in July 2003 at the Liverpool University Centre for Archive Studies

Once again, I was invited to make a contribution about Heiner to an international forum organised in the U.K. On this occasion, I broadened the topic by narrating (for the first time in public) the story of my downfall in Victoria. I used the parallel stories to overlay a mere account of Heiner with a probing analysis of the roles of the archivist and began to explore the question of professional standards in this context. This paper was included, together with other conference papers, in Political Pressure and the Archival Record edited by Margaret Procter, Michael Cook, and Caroline Williams (Society of American Archivists, 2005) and appears here with permission of the Society of American Archivists.

Political Pressure and the Archival Record Revisited

Political Pressure and the Archival Record Revisited: The Role of the Archives in Protecting the Record from Political Pressure. (15th International Congress on Archives 2004 - Archives, Memory and Knowledge, Vienna, 25th August 2004 - reprise of paper delivered in Liverpool at Liverpool University Centre for Archive Studies in July 2003)

I was invited (along with two other presenters from Liverpool) to reprise the 2003 presentation. Time was too short to do that and, besides, the Heiner Affair (so far as its archival aspects were concerned) was by now settled. The Affair continued and developed in other directions, but our issues were now old news. So I used this occasion to present an entirely new analysis based on the inadequacy of the professional response and the question of standards. These were new matters that redefined the Affair just for us (Heiner II as it were). On the latter issue, I was now in a curious position. Having fought long and hard to have ASA condemn the appraisal, I had now come around to the belief that it was not possible to say that there had been professional wrongdoing because the profession did not provide standards adequate to guiding those archivists involved or for assessing their professional conduct. The necessary conclusion was that it was not possible either to evaluate any “right-doing” on my own part in the case of my confrontation in Victoria in defence of professional standards there – for exactly the same reasons. I have reason to believe that this evolution in my own thinking has completely escaped most of my colleagues who still seem to think that I have been repeating the same message for nearly 20 years. In response to such incomprehension and to counter accusations that I became a bore or a fanatic on the subject I make two points : my message now is very different to what it was in 1998 and everything of substance that I have written and spoken on this subject since 2001 has been by invitation.

Records & the Public Interest: the “Heiner Affair” in Queensland, Australia (2002)

Archives and the Public Good : Accountability and Records in Modern Society, Richard J. Cox and David A. Wallace (eds), Quorum Books, 2002, pp. 293-318

By this stage, I was becoming known as a Heiner expert. Copyright in this contribution to an archival issues book is held by the publisher so it does not appear here on-line at this time.

Recordkeeping, document destruction, and the law (Heiner, Enron, and McCabe) (2002)

First published in Archives and Manuscripts 30(2), November 2002

This is a revised version. It was awarded the 2003 Michael Standish Prize by the Archives & Records Association of New Zealand (ARANZ).

The Evolving Role of Government Archives in Democratic Societies (2001)

(Plenary Address delivered to the Association of Canadian Archivists Annual Conference, Winnipeg, 9 June 2001)

I presented this by invitation. Inevitably, given the topic, Heiner figured largely but I like to think it had a wider relevance. It was suggested I publish in Archivaria but the peer reviewers asked for too many changes, so here it remains. Not for the first time, I felt reviewers were trying to rewrite the work as they would have done it rather than improve and correct it. These are, of course, faults that I successfully avoid when I am called upon in that capacity.

The Shredding of the Heiner Documents : An Appreciation (1993)

Published online 1998

What the Heiner Affair was should be apparent from a reading of the material posted here. I was drawn into it by contact from Kevin Lindeberg who sought my advice on the professional issues involved. As I came to be familiar with the Affair, I began to wonder why it hadn’t been taken up as a public issue by ASA. Deciding to be helpful, I wrote this analysis. They did nothing with it. So I put it up on Mike Steemson’s RIMOS website where it was “jazzed up” in Mike’s inimitable journalistic style. At this stage, my concern was with the role of the Queensland State Archivist and claims made concerning her role by Queensland authorities that I felt needed to be challenged. Subsequently, the Affair developed along other lines of less direct interest to archivists. It’s continuing relevance beyond this stage – for us - was the inadequacy of the professional response to the Affair and the issue of professional standards that it highlighted. These collateral issues are still being debated and disputed.

Shredding of the “Heiner Affair” Records : An Up-dating Summary

Published online 2002

As the Affair developed, my involvement became focused on heated debates taking place within the profession about our professional response (or want of it).
In the midst of this tumult, I presented this update on the RIMOS Site.

From Dust Bins to Disk Drives : A Survey of Archives Legislation in Australia (1994)

First published in The Records Continuum, Ian Maclean and Australian Archives First Fifty Years, Ancora Press in association with Australian Archives, Clayton, 1994, pp. 210-211

They needed a review of archives legislation for the Maclean book and they asked me to do it. I was in disgrace at the time and it was published unattributed because it was uncertain whether it would be permitted by the Victorian Government (then my nominal employers). I was indebted to Eric Ketelaar for providing an analytical framework for this piece. ICA had issued a series of RAMP Studies and Eric’s on archival legislation gave an excellent outline that I used as a template for this analysis of Australian legislation. Here I introduced the “generational model” of legislative development – from a purely custodial/collecting approach (1st generation) towards a fully post-custodial one (3rd generation).

From Dust Bins to Disk-drives and Now Dispersal: The State Records Act 1998 (New South Wales)

First published: Archives and Manuscripts, 26 (2) 1998

Fresh from my experience as consultant on the development of the NSW State records Act, I updated my 1994 analysis. We had transformed the NSW Act by bringing it firmly into the 2nd generation (involvement in recordkeeping generally not merely as a collector of permanent value materials deposited there). But we had also introduced enough from the post-custodial model for me to feel (and claim) that this was, at least, a 2.5 generation Act.