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Evidence Act 2008 Project

Welcome to the Evidence Act, 2008 (EA 2008) Project webpage! This page will provide you with information about the EA 2008 project as a whole as well as the status of the products currently in development.

Please check back often, as we will be adding new information and project status reports as the project progresses. This page was last updated on 26 August 2009.

Contents

What's happening?

Project overview

Background

New products

Amended products

Current PROV Standards

Implementation

Who's who?

Any questions?

What's happening?

The review period for the General Disposal Authority for Converted Records and the Specification for Digitisation Image Requirements is now over. Thank you to those who provided feedback. Your help is greatly appreciated.

The draft Specification on Digitisation Requirements will be available shortly for public exposure. Please refer back to this page on a regular basis for details.

The Leo Cussen Institute and PROV have agreed to join forces and develop a seminar regarding the EA 2008 and records management. The seminar is scheduled for 4 November at the Leo Cussen Institute in Melbourne . For more information, please refer to the Institute's website ( www.leocussen.vic.edu.au ).

The next RMN session on 8 December will see the release of the products related to the Evidence Act 2008 and its online training modules. To complement the launch of the new documents, we will include one or more external speaker who will present on topics relating to scanning and digitising. The speakers will be confirmed closer to December.

This event will be held at the Treasury Theatre - 1 Macarthur Street, East Melbourne - from 2:00pm prompt, until 4:30pm , followed by an opportunity to network with your peers over drinks.

Between now and December, PROV and the Office of the Victoria Privacy Commissioner have been working together to deliver seminars in the region . These full-day free seminars will cover the following topics:

* Evidence Act: Implications for Recordkeeping and Document Management;
* Privacy and Recordkeeping; and
* Privacy in Victoria : What you need to know.

We will be in the following locations:
* Mildura - 22 October,
* Wangaratta - 17 November, and
* Sale - 27 November

Also, the Department of Justice has developed a "Ready Reckoner" that is expected to be published on their website shortly. The “Reckoner” compares each section of the Evidence Act 2008 with the Evidence Act 1958, and evaluates the importance of the change. It is a detailed and technical document and is available on request. If you would like a copy, please email Julie Savoie at the email address below.

Project overview

The passage of the Evidence Act, 2008 (EA 2008) in Victoria changes the law of evidence in the state, with consequential effects on public recordkeeping, the Public Records Act, 1973 (PRA 1973) and the products PROV publishes. In preparation for the EA 2008 to come into force, PROV undertook an impact analysis in late 2008 to identify which of its published products needed to be amended or replaced. This project is a result of that review: it will deliver new and amended products for government agencies to use that will clarify the effects of the EA 2008 and enable agencies to prepare for these changes.

Background

The Uniform Evidence Acts (UEAs) came into force in the Commonwealth and New South Wales in 1995. Essentially, the UEAs aimed to produce a unified, consistent, modern and flexible codification of law which would both simplify and improve the evidentiary process in court.

The Victorian Evidence Act 2008 (EA 2008) emulates the intent of the UEAs in that all the rules of evidence can be found in the Act itself. Of particular interest to records managers, the EA 2008 simplifies and modernises three key areas in case-based evidence law, which are described as follows:

•  The notion of documents as evidence/proof;
•  The abolishment of the “original as best evidence” rule;
•  The admissibility of computer-generated records.

Documents as evidence / proof

The changes that the EA 2008 embodies in the area of admissibility of documents are particularly important to records managers, as the definition of “document” relates directly to the PRA 1973 definition of “record”. The EA 2008 expands both the notion of a “document” and the ways in which a document's content can be brought before the court.

Original as best evidence

Prior to the EA 2008, the “original as best evidence” rule of evidence was problematic for the tendering of electronic records. The rule states that where a document is to be tendered in evidence, the original must be produced. If the original is unavailable, a copy may sometimes be tendered, but will often be accorded a lower weight. The abolishment of the original as best evidence rule removes the impediment to submit copies of documents into evidence.

Computer-generated records

The EA 2008 states explicitly that computer-generated (electronic) records cannot be excluded from evidence on the basis that they are in electronic format, nor will they be subjected to stricter or more onerous proof of authenticity than paper records. In this regard, therefore, electronic records now have equal status to paper records.

Digitisation and conversion of records from one format to another to support business dealings is a practice well established in many agencies. However, limitations in what constitutes an original document often require agencies to maintain two systems of records: one containing the electronic or converted record (e.g. a scanned document in a file) and one containing all the original records in hardcopy. Not only is this process onerous, but it can lead to the loss or even unlawful disposal of records.

The EA 2008 legitimises the current trend within agencies to digitise paper records and destroy the paper originals, maintaining the digitised copy as the source record. Consequently, it removes the need to potentially have to maintain several record management systems.

Notwithstanding the above, the fact that an electronic record can replace an original document and become a source document does not in itself legitimise the blanket destruction of records, once converted. In some circumstances original documents must be preserved. In order to help agencies manage this new layer of complexity, PROV is developing new documentation to provide authoritative guidance to agencies.

New products

PROV will support the trend toward digitisation while ensuring good recordkeeping practices by creating products that provide the adequate framework for the Victorian public sector. The following documents are in development and will be issued in conjunction with the commencement of the EA 2008, currently expected 1 January 2010 .

• General Disposal Authority for Converted Records
• The purpose of this authority is to authorise the disposal of source records after they have been converted to another format. Examples of such a conversion are the digitisation of a paper original, or the conversion of a digital record from one software format to another.

• Specification on Digitisation Requirements
• The purpose of this Specification is to provide a detailed and exact set of measurable requirements for digitising records with a view to using the digitised copy as the record and disposing of the source record.

• Guidelines/case studies
• Some agencies have not yet started a digitisation plan. These documents will focus on existing practices and experiences within other agencies in order to exemplify the process;

• Specification on Digitisation Image Requirements
• The purpose of this Specification is to provide a detailed and exact set of measurable requirements that images must satisfy when digitising source records with a view to using the digitised copy as the record and destroying the physical original.

• Advice on Public Records as Evidence
• This document will provide advice on records as evidence, dealing with:

•  requirements and parameters of the EA 2008;

•  authenticity;

•  accuracy of the reproduction process for copies;

•  ongoing accessibility.

Amended Products

In order to ensure compliance with the new legislation, there are a number of PROV products that require updates. In addition, b ecause the Crimes Document Destruction Act and Evidence Document Unavailability Act are closely aligned with the EA 2008, both of these Acts were considered in the document review process. As a result, a number of Advices, Guidelines and Records Management Guides will be updated.

Current PROV Standards

The PROV Recordkeeping Standards Program is under way and will deliver a new suite of standards and specifications to support agencies in their delivery of a comprehensive recordkeeping program. Consequently, the current standards are not being revised as part of the EA 2008 project and any legislative impacts on the new Standards and Specifications will be managed via the Recordkeeping Standards Program.

Implementation

To ensure the successful implementation of the products related to the EA 2008, PROV wants to effectively inform and support government agencies. One of the initiatives will be to schedule a number of seminars to educate records managers on the products released. In addition, the documents will be available on the PROV website, and agencies will have the opportunity to provide their input and provide feedback on them either online or via workshops that will be organised for each product. The goal is to ensure that agencies are aware of the upcoming products, that they are prepared to use them and that they understand how to use them. If you are interested in participating in a particular workshop for one or more of the above products then please let us know and we'll make contact with you when we organise the workshops.

Who's who?

Graeme Hairsine, Senior Manager Standards and Assessment, is responsible for the strategic management of the PROV recordkeeping standards and EA 2008 programs of work.

Julie Savoie, Senior Policy Adviser, is the project manager and is responsible for the successful implementation of each products. You can contact her directly to get involved.

Andrew Waugh, Senior Technical Adviser, is responsible for overseeing the development of some of the specific products mentioned previously.

Ricky Tuck, Trainer, will develop education material to be delivered via different media to promote understanding and effectively inform and support government agencies.

Any questions?

Please contact Julie Savoie, at Julie.Savoie@prov.vic.gov.au

Tel: (03) 9348 5600
Fax: (03) 9348 5656

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