Symantec Enterprise Vault Information Management and Compliance Factsheets

Transcription

1 Australian businesses rely upon efficient timely settlement and a costly and longwinded information management practices to legal process. improve productivity and profit. Businesses that do not appropriately Today, the majority of documents and manage their information may face records are created and stored adverse publicity, significant financial electronically. penalties for non-compliance and increased scrutiny from regulators and the The ability to instantly identify an instant Court. message from last week, the attachment to an from last month, or even the Consider the recent Australian cases: revisions to a document prepared last year, is important to the end-user. In 2007, the high-profile financial services professional and CEO of a Businesses must be in a position to publicly listed company that was demonstrate a proactive and transparent investigated by ASIC, and approach to information management. subsequently banned from their This is critical where documents or records profession for 10 years for, among may be required for inspection by a other things, destruction of regulatory body or produced as part of a documents in contravention of the DRAFT discovery FOR order in litigation. EDUCATIONAL Corporations PURPOSES Act 2001 (Cth). ONLY Australian Courts commonly order the discovery of and electronic documents in their electronic form. Formal procedures for parties to manage electronic discovery have been introduced in many Courts. For example, Practice Note CM6 (formerly 17) in the Federal Court of Australia. The capability of a business to promptly search, identify and preserve potentially relevant documents or records across multiple information repositories within the business is often the difference between a In 2008, the local government authority that was required to undertake a costly search of s as part of a Freedom of Information request. In 2009, the Australian subsidiary of a Fortune 500 technology manufacturer that was sued by a competitor, ordered to give discovery and then forced to defend allegations of deliberate document destruction. Page 1 of 6

2 This document highlights key legislative information retention and destruction obligations for Australian businesses. Contracts entered into by the business can also give rise to an obligation to retain select documents. Legislation and contract often specify the retention period for a document or record before it may be lawfully destroyed. However, each information management decision must be approached carefully as a risk mitigation exercise. It is considered prudent to retain documents beyond a specified retention period where the documents may be reasonably required to justify the contemporaneous actions of the business in the future. For example, documents DRAFT FOR EDUCATIONAL varies as to a PURPOSES retention period for such ONLY relating to an employee injury that is argued to trigger a more serious disability than first diagnosed or a product manufacturing procedure that is portrayed as defective. General From beekeepers to travel agents, Australian businesses must comply with information management obligations in relation to many types of documents and records. Corporations Act 2001 (Cth) Companies must retain accounting records for seven (7) years after date of transaction completion. Companies must also retain records in relation to shareholders and company minutes for at least five (5) years. Taxation Laws (Various) Taxpayers, including individuals and companies, must retain taxation records, including motor vehicle log books, to support their obligations under the Income Tax Assessment Act 1997 (Cth), Fringe Benefits Tax Assessment Act 1986 (Cth) and the A New Tax System (Goods and Services Tax) Act 1999 (Cth) for five (5) years after date of transaction completion. Taxpayers must also comply with applicable payroll and stamp duties recordkeeping obligations. Legislation records. At least seven (7) years after date of transaction completion is generally recommended. Superannuation Guarantee (Administration) Act 1992 (Cth) Employers must retain documents in relation to superannuation transactions for at least five (5) years. Fair Work Act 2009 (Cth) and Industrial Relations, Annual Holidays and Long Service Leave Laws (Various) Employers must retain a number of documents in relation employees, Page 2 of 6

3 including date of employment within Australia and destroyed when no commencement, employment contract, longer required. Additional obligations pay and leave particulars and if applicable, generally apply to medical and health date of termination. Legislation varies as service providers. to a retention period for such records. At Trade Practices Act 1974 and State Fair least seven (7) years after the date of an Trading Laws Businesses should retain employee s employment termination is documents in relation to product generally recommended. manufacturing and consumer transactions Occupational Health and Safety and in the event of a product liability claim or Workers Compensation Laws (Various) investigation. Legislation varies as to a Employers must retain a number of retention period for such documents. At documents in relation to their occupational least 10 years after the date of product health and safety policy and procedures. manufacture is generally recommended. Further, where an employee is injured in the course of their employment, this Banking and Financial Services obligation extends to retaining documents The global economy relies upon the in relation to any employee compensation banking and financial services industries and rehabilitation management. to facilitate trade and commerce. DRAFT Legislation FOR varies as to EDUCATIONAL a retention period Banking Act PURPOSES 1959 (Cth) - Banks must ONLY for such documents by State and industry. At least seven (7) years after the date of an employee s termination is generally recommended. Privacy Act 1988 (Cth) and State Privacy Laws Except for select small businesses, businesses that collect and use personal information are subject to the 10 National Privacy Principles (NPPs). The NPPs set out that personal information must only be used or disclosed for the purpose it was collected. Personal information should also be stored securely retain documents in relation to their authority to provide a banking service. Banks must also retain annual statements for unclaimed monies in bank accounts that have not been operated for seven (7) years and contain more than $100. Financial Transactions Reports Act 1988 (Cth) (FTR Act) Banks and related financial service providers must retain documents in relation to transactions over $200 for seven (7) years after the date of transaction. This obligation also facilitates Page 3 of 6

4 requests under the Proceeds of Crime Act to their authority to carry on an insurance 2002 (Cth). business. General insurers must also retain documents in relation to all Anti-Money Laundering and Countertransactions and financial statements to Terrorism Financing Act 2006 (Cth) explain their financial position. Similar (AML/CTF Act) Designed to enhance obligations apply to life insurers under the the detection and prevention of money Life Insurance Act 1995 (Cth) and private laundering and terrorism financing, the health insurers under the Private Health AML/CTF Act imposes increased Insurance Act 2007 (Cth). transaction reporting obligations for banks and related financial service providers. Superannuation Industry (Supervision) Similar to the FTR Act, banks must retain Act 1993 (Cth) and Superannuation documents in relation to any suspicious Contributions Tax (Assessment and transactions or transactions over $10,000 Collection) Act 1997 (Cth) for seven (7) years from the date of Superannuation providers must retain transaction. The bank must retain documents in relation to trustees and customer identity and verification reports for at least 10 years. documents for seven (7) years following Superannuation providers must retain cessation of relationship. A maximum DRAFT penalty of FOR $11,000,000 EDUCATIONAL can apply where a for at least five PURPOSES (5) years after the date of ONLY corporation breaches the retention documents in relation to all transactions transaction completion. Superannuation obligations of the AML/CTF Act. providers must also retain financial statements to explain their financial State Credit and Consumer Credit Laws position for five (5) years. (Various) Banks, credit providers and finance brokers should retain all Education documents in relation to credit sales, loans The education industry is responsible for and mortgages. Legislation varies as to a teaching, research and development. retention period for such documents. At Education providers also collect significant least seven (7) years after the date of volumes of information in relation to staff transaction completion is generally and students that must be appropriately recommended. managed. Insurance Act 1973 (Cth) General insurers must retain documents in relation Higher Education Support Act 2003 (Cth) Higher education providers must Page 4 of 6

5 retain documents in relation to their authority to operate as a University or similar education provider. Education Services for Overseas Students Act 2000 (Cth) Education providers for overseas students must retain documents in relation to accepted students for at least two (2) years after the date of the student s last enrolment with the provider. State Education Laws (Various) Education providers must retain documents in relation to their authority to operate an education service. Education providers must retain documents in relation to a student s daily attendance. for such documents. At least seven (7) DRAFT FOR EDUCATIONAL express obligation PURPOSES not to give advice to a ONLY years after the date of the student s last enrolment is generally recommended. Child Care Laws (Various) Childcare providers must retain documents in relation to their authority to operate a childcare service. Childcare providers must also retain documents in relation to a child s personal information, including contact and health particulars. Legislation varies as to a retention period of such documents. It is generally recommended to retain such documents until the child is calculated to be at least 25 years old. Legal Services The legal profession relies on the law. However, even legal practitioners are not exempt from information management obligations. State Legal Profession Laws (Various) Legal practitioners must retain documents in relation to their authority to provide legal services (i.e. practicing certificate). Legal practitioners must also retain documents in relation to trust accounts. Legislation varies as to a retention period for such documents. At least seven (7) years after the date of matter completion to which the transaction relates is generally recommended. In many Australian jurisdictions, legal practitioners are also subject to an client to destroy a document, if the document may be required in an actual or anticipated legal proceeding. Health and Medical Services The health and medical services industry relies upon personal and sensitive information to provide timely diagnosis and treatment. Such information must be appropriately managed. Health Insurance Act 1973 (Cth) Approved pathology authorities and medical practitioners must retain Page 5 of 6

6 documents in relation to diagnostic National Health Act 1953 (Cth) imaging services for at least 18 months. Approved non-government nursing homes must retain documents in relation to their National Health (Pharmaceutical patients, and patient care, including any Benefits) Regulations 1960 (Cth) Commonwealth benefit claims, for at least Medical practitioners and pharmacists who seven (7) financial years. supply a pharmaceutical benefit must retain documents, including prescriptions, State Dental Practice Laws (Various) for at least one (1) year. Dentists must retain documents in relation to their patients. Legislation varies as to a State Medical Practice Laws (Various) retention period of such documents. At Medical practitioners must retain least seven (7) years after the date of last documents in relation to their patients. patient treatment is generally recommended. If the patient was a child for such documents. At least seven (7) at time of treatment, it is generally years after the date of last patient recommended to retain such documents treatment is generally recommended. until the child is calculated to be at least State Hospital Laws (Various) 25 years old. Hospitals must retain documents in DRAFT relation to FOR their patient s EDUCATIONAL clinical record. PURPOSES ONLY for such documents. At least seven (7) years after the date of last patient treatment is generally recommended. State Mental Health Laws (Various) Medical practitioners and related health care providers must retain documents in relation to their mental health patients. of such documents. At least seven (7) years after the date of last patient treatment is generally recommended. Page 6 of 6