The Commonwealth Government has established a Royal Commission into National Natural Disaster Arrangements. The terms of reference for this Royal Commission have been released.
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 Deputy 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. NSW State Archives and Records issued the following advice to all Chief Executives on 22 May:
As you would be aware, a Royal Commission into National Natural Disaster Arrangements (the Bushfire Royal Commission) has been established as a result of the 2019-20 bushfire season.
The Royal Commission’s terms of reference can be found at https://naturaldisaster.royalcommission.gov.au/about/terms-reference.
A final report with recommendations is expected to be provided to the Governor-General no later than 31 August 2020.
In accordance with the State Records Act 1998 (NSW), the records of NSW Government public offices are subject to rules regarding retention and protection, including in certain cases the time period for which they must be retained and after which they may be disposed of.
I am now writing to all public offices to request that all practicable steps are taken to ensure that any normal administrative practices do not result in the loss or destruction of any records that may be required in evidence before the Royal Commission.
This may require public offices to conduct internal risk assessments to identify and retain past or current records that are reasonably likely to be required by the Royal 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. Public offices may also be required to suspend Document Disposal Schedules under their relevant State Records Disposal Authority.
It should be noted that the approval for disposal given by retention and disposal authorities issued by NSW State Archives and Records 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.
It is noted 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.
NSW State Archives and Records will continue to provide advice on this matter as appropriate.