Pearls and Irritations

How did the National Archives of Australia, whose core function is to ‘collect, preserve, manage and make public Australia’s most significant historical records, become instead an obstacle to public access and a barrier to knowledge of our own history? Minister for the Arts Tony Burke must act to reverse the Morrison government’s attack on the spirit of the Archives Act.

It has been a difficult decade for the Archives. Years of relentless budget and staffing cuts, and some highly questionable organisational priorities, have left it unable to fulfil its core functions and ‘at crisis point’. Wracked by a series of damaging revelations: disintegrating historical records, including irreplaceable audio-visual recordings of endangered Indigenous languages; the public relations disaster of a clumsy crowd-funding campaign to save those records which the Archives itself had failed to protect; and, in the most consistent and strident complaint, untenable delays in meeting requests to access its records.

Although required to deal with access requests within 90 working days there is no sanction on the failure of the Archives to do so. Requests routinely stretch out to years, and even more than a decade, and there is now an immense accumulated backlog in unanswered requests. These culminated in the excoriations of the Tune review into the Archives, which reflected the frustrations expressed in numerous submissions from historians and others in its findings that Archives had ‘struggled to fulfil its mandate’, ‘is failing to deliver’ in its response to access requests, and potentially in breach of its own Act.

Add to this the powerful, yet little known, amendment to the Archives Act introduced by the Morrison government in 2018, which placed limits on researchers’ access to records, and the Archives’ defining principle of equitable open access to historical records has been seriously compromised. The unacceptable delay and ever-expanding backlog of requests have become an unstated, potent, form of denial of public access – a denial without reason. It makes a mockery of the Archives’ claimed commitment to open access, the significance of which is highlighted by UNESCO’s Universal Declaration on Archives; ’Open access to archives enriches our knowledge of human society, promotes democracy, protects citizens’ rights and enhances the quality of life’.

So, how has the Archives responded to the dire state of its vital public access role? By limiting the capacity of its most prolific researchers to request access to its records. Yes, you read that right, the Archives has responded to its own failure to deal appropriately with access requests by pursuing researchers deemed to be too active, too demanding, and whose research exceeds a mere 25 requests in a 90 working-day period. I know, because I’m one of them.

After years of extensive original research bringing documents and previously unknown aspects of our history to light, I was stunned to receive an email from the Archives this week telling me, without any warning, that I have exceeded the limit of requests for access and, therefore, I have now entered a Kafkaesque archival limbo known as ‘the consideration period’. And if you’re a researcher then believe me, you do not want to be there. The ‘consideration period’ upends the principle of equitable open access by increasing the length of time Archives can take to deal with access requests once that exceeds 25 requests – a marvellous deflection which penalises the researcher rather than addressing its own failings.

There’s a singular incongruity in this ‘record management’ regime existing alongside the Archives’ well-documented failure to meet its own 90 day timeline for access requests – for which it suffers no sanction. Because, and here’s the kicker, I currently have 22 outstanding access requests with the Archives dating back many years, 14 of them for more a decade – and yet I’m the one in the ‘consideration period’!

What makes this punitive regime even more so, is a singularly perverse element in which the time taken to process requests is in direct proportion to the number of requests made. Through this archival ratchet manoeuvre, the more research requests you make, the longer the Archives will take to process them. As a result, all my requests made in the last 4 months have now been pushed back a further year to be due in late 2024 which, with a book contract waiting to be completed, makes that simply impossible. And if, like a recalcitrant child I make any more requests, then that time will be extended even further – another 6 months here, an extra year there – until I agree to cancel my access requests, cut my research, and reduce my requests to an absurdly low cap of 25 applications.

Although the Tune review suggested a cap on ‘high volume’ applications, that was taken to mean hundreds of requests, not 25, which is both punitive and destructive of sustained original research. It’s a bureaucratic fix only, which might artificially ameliorate the shocking number of unmet requests revealed in the Archives’ annual reports, but which is immensely damaging to the principles of public access, equity, and transparency, ostensibly at its heart. Most importantly, the imposition of a cap on access requests fundamentally misunderstands the nature of original research into records that are yet to be opened, as opposed to research into records which are already in the public domain.

Let’s look at what this cap means in practice. Take Sir John Kerr’s papers, a holding with which I am, regrettably, all too familiar. There are over a thousand individual records in Kerr’s papers and when I first began examining them very few had been opened. I requested access to hundreds of those records over several years, never knowing which might be significant – since all I had to go on was a title, precisely because they were not yet open and so very little was known about them. Some of the most important historical documents about Kerr’s dismissal of Gough Whitlam came from that extended research into Kerr’s records – the role of High Court justice Sir Anthony Mason, Kerr’s correspondence with the Queen discussing the use of the reserve powers, her private secretary’s ‘advice to me on dismissal’ as Kerr described it, and the support of both Lord Mountbatten and our King, then Prince Charles, for Kerr’s actions.

Much of this also formed the evidentiary base for the Palace Letters legal action, which was underway when the Morrison government introduced the cap on requests, through an amendment to the Archives Act in 2018. Had I been restricted to requesting only 25 files every 90 working days, many of which would not have been opened by Archives within that time it would have taken decades to open and research Kerr’s vast papers, and much of that critical public history would still be unknown today.

One of the most perplexing things about this perverse system is that a simple and immediate solution to these delays is readily available. Much of the backlog and delay is caused by the unchecked practice of returning records for vetting to the department which created them – without a specified time limit. This is not only absurd, and arguably a breach of the Archives Act, it leaves thousands of requests for records gridlocked in the department, designated as Tim Sherratt has documented as ‘withheld pending advice’, indefinitely. This is the primary cause of delays, and why it is not also the solution is a mystery. The simple solution, as the Australian Historical Association has also argued, which would address both the delay and the backlog would be to impose on the department the 90 day period for responding to requests which, if not met, would then be deemed open for public access.

While the Archives regularly redacts files on specified grounds such as national security or privacy, the imposition of a cap on access is altogether different, affecting individual researchers and impairing their capacity to conduct original research, something which was never envisaged in the original Archives Act. This is a profound and disturbing shift from what the former High Court justice, Michael Kirby, described to the Tune review as the ‘democratic function’ of the Archives, ‘holding up a mirror to the people of Australia based on the availability of records’ [my emphasis].

I urge the Minister, Tony Burke, and Prime Minister Anthony Albanese, to end this imposition on the freedom of research and historical inquiry and restore the principle of equitable open access once at the heart of the Archives, before that democratic function is damaged beyond repair.

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