The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse handed down its final report last week which included a volume on recordkeeping and information sharing. We hope to provide updates for this page early next year.
The Royal Commision was appointed by Letters Patent issued 11 Jan 2013. The Letters Patent define the scope and terms of reference for the Royal Commission. A Special Commission of Inquiry into certain matters raised in relation to child sexual abuse allegations in the Hunter region has also been established by the NSW Government.
Agencies should note that under s.6K of the Royal Commissions Act 1902 (Cth) it is an offence to wilfully destroy or otherwise make inaccessible a record that is or may be required in evidence for the purposes of a Commission. A similar offence applies under s.29 of the Special Commissions of Inquiry Act 1983 (NSW).
The A/Director General of the Department of Premier and Cabinet has issued a memorandum requesting that agencies take appropriate steps to ensure that no records that may be relevant to or required as evidence for the purposes of either of these Commissions are destroyed. State Records issued the following advice to all Chief Executives on 6 March:
As you would be aware, the Commonwealth Government has established a Royal Commission to investigate Institutional Responses to Child Sexual Abuse. The terms of reference for this Royal Commission have been released and are available on the Royal Commission’s website (www.childabuseroyalcommission.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 will inquire into how institutions (private or public) with a responsibility for children have managed and responded to allegations and instances of child sexual abuse. The Commission has indicated that its investigations will entail examination of institutional responses in the past as well as current practices (Media Statement 16 January 2013).
An institution is broadly defined as a body that provides, or has at any time provided, activities, facilities, programs, or services of any kind that provide the means through which adults have contact with children, including through their families.
Given this definition of an institution, government agencies most likely to be maintaining records relevant to the Royal Commission are those agencies that directly cared for, or provided services to, children. This would include agencies that educated or provided childcare for children (e.g. schools, kindergartens, pre-school, after school, early childhood and childcare services), housed children (e.g. youth detention centres, support services), or provided direct services to children (e.g. hospitals, health, disability, community and child welfare or protection services).
Agencies that controlled, regulated, contracted services from, or provided facilities to such institutions (e.g. departments providing youth, family and community services, and justice and education agencies, as well as local government) are also likely to be maintaining records of potential relevance to the Royal Commission. Investigatory and prosecutorial agencies (such as the NSW Ombudsman, Police and Office of the Director of Public Prosecutions) may also hold records of relevance.
The records of most likely relevance are those concerned with:
- specific cases of abuse or allegations of abuse, particularly how it was handled within the agency or referred to other agencies
- agency policy and procedures for the handling of allegations or reports of abuse (including response, investigation or referral and follow-up).
Consideration may also need to be given to records relating to the service of employees, contractors and volunteers who may have been engaged in child related employment.
However, the Royal Commission’s terms of reference are broad and the actual scope of the inquiry will be determined by the Commissioners. At this stage it is only possible to provide advice of a general nature with regard to records that may be required by the Commission.
Agencies are strongly recommended to review the terms of reference of the Royal Commission and 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 agency both current and past and, if required, informed by legal advice.
Where an agency does identify any holdings of records that are reasonably likely to be required by the Royal Commission, the agency should take steps to preserve them. This will require suspension of records disposal programs in some instances. Agencies should also take steps to ensure that the records are accessible in case required.
Where an agency engages other institutions (or has engaged other institutions) to provide services relating to children we recommend the agency 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 is given under the provisions of the State Records Act 1998 only and does not override any other obligations of an agency 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.
In September 2016 the Royal Commission released a consultation paper on Records and Recordkeeping Practices. The paper proposes high-level principles to guide institutions in practising good recordkeeping and creating accurate records about child sexual abuse. These principles are intended to promote child safety, institutional accountability and just outcomes for victims and survivors of child sexual abuse. The Commision sought submissions on these proposed principles and also submissions on whether a records advocacy service is needed to advise and support survivors seeking access to institutional records. The Consultation paper and related submissions are available from the Royal Commission's website http://www.childabuseroyalcommission.gov.au/policy-and-research/our-poli...
State Records will continue to provide advice on this matter as appropriate.