The Commonwealth Government has established a Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. The terms of reference for this Royal Commission have been released and are available on the Royal Commission’s website.
Public offices should note that it is an offence under section 23 of the Royal Commissions Act 1923 (NSW) to wilfully destroy any document or other thing that is or may be required in evidence before a Royal Commission. A similar offence applies in section 6K of the Royal Commissions Act 1902 (Cth) in respect of a Commonwealth Royal Commission.
The Secretary of the Department of Premier and Cabinet has sent a letter to all Secretaries requesting that agencies take appropriate steps to ensure that no records that may be relevant to or may be required in evidence before the Royal Commission are destroyed. State Records NSW issued the following advice to all Chief Executives on 27 February 2020:
As you would be aware, the Commonwealth Government has established a Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. The terms of reference for this Royal Commission have been released and are available on the Royal Commission’s website (https://disability.royalcommission.gov.au). There are NSW public offices which hold records relevant to the inquiry and it is essential that appropriate protections are put in place to safeguard and make accessible those records reasonably likely to be required by the Royal Commission.
The Royal Commission is to have regard to the following matters:
a) all forms of violence against, and abuse, neglect and exploitation of, people with disability, whatever the setting or context;
b) all aspects of quality and safety of services, including informal supports, provided by governments, institutions and the community to people with disability, including the National Disability Insurance Scheme (NDIS) and the NDIS Quality and Safeguarding Framework agreed by all Australian Governments in 2017;
c) the specific experiences of violence against, and abuse, neglect and exploitation of, people with disability are multilayered and influenced by experiences associated with their age, sex, gender, gender identity, sexual orientation, intersex status, ethnic origin or race, including the particular situation of Aboriginal and Torres Strait Islander people and culturally and linguistically diverse people with disability;
d) the critical role families, carers, advocates, the workforce and others play in providing care and support to people with disability;
e) examples of best practice and innovative models of preventing, reporting, investigating or responding to violence against, and abuse, neglect or exploitation of, people with disability;
f) the findings and recommendations of previous relevant reports and inquiries.
The Royal Commission may traverse matters that occurred many years ago.
Records of NSW Government organisations or public offices (i.e. Departments, agencies, authorities, state owned corporations, local government councils, and universities) are subject to the State Records Act 1998 (NSW) and the rules regarding their retention and protection, including the time period for which they must be retained and after which they may be disposed of.
In light of the commencement of the Royal Commission, and the prospect that it may need to access historical material, I strongly recommend that all public offices take whatever practicable steps are available to ensure that these normal administrative practices with regard to the disposal of records do not result in the loss or destruction of any records that may be required in evidence before the Royal Commission.
Public offices are strongly recommended to review the terms of reference of the Royal Commission and to conduct risk assessments to determine if they hold past or current records that are reasonably likely to be required by the Commission. This risk assessment should be conducted by appropriately qualified staff with knowledge of the records and information management systems and practices of the organisation both current and past and, if required, informed by legal advice.
Where a public office does identify any holdings of records that are reasonably likely to be required by the Royal Commission, the public office should take steps to preserve them. This will require suspension of records disposal programs in some instances, including the suspension of the application of the relevant Retention and Disposal Authority in response of certain documents, for example, case records of allegations or investigation regarding matters of violence, abuse, neglect or exploitation of people with disability. Public offices should also take steps to ensure that the records are accessible in case required.
Where a public office engages other institutions (or has engaged other institutions) to provide services to people with disability, we recommend the public office should liaise with these institutions to ensure that they are also identifying and preserving the relevant records.
It should be noted that the approval for disposal given by retention and disposal authorities issued by State Records NSW is given under the provisions of the State Records Act 1998 only and does not override any other obligations of a public office to retain records. A public office must not dispose of any records where the public office is aware of possible legal action (including legal discovery, court cases, formal applications for access, Commissions or Inquiries) where the records may be required as evidence.
State Records NSW will continue to provide advice on this matter as appropriate.
February 2020