James Hardie (Investigations and Proceedings) Act 2004

The Act revolves around a small set of statutory concepts, each defined in s 3 and deployed in s 4-s 6. They are:

• James Hardie material. This is the operative concept that identifies what documents and information are subject to the abrogation. It includes records made, kept or received by the NSW Special Commission of Inquiry (the Commission) (s 3(1) first limb), books taken into possession or secured under ASIC Act warrants after the commencement of the Act for the purposes of, or in connection with, a James Hardie investigation or proceeding (s 3(1)(b)), and books, information, or other material requested, required, received by ASIC, an ASIC delegate or the DPP after commencement for those purposes (s 3(1)(c)-(e)). The definition therefore reaches Commission records and material that authorised persons procure after the Act commences.

• James Hardie investigation and James Hardie proceeding. A James Hardie investigation is an ASIC Part 3 investigation that relates to listed topics: the financial position of the James Hardie Group or an entity within it, the ability of an entity to meet liabilities, an event that may have affected that ability, a James Hardie Group restructure event, appointments to the boards of specified entities, conduct by officers, employees or professional advisers of group entities that may have affected liabilities, events referred to in the Commission report or hearing, and any prescribed matters (s 3(1) definitions). A James Hardie proceeding is a proceeding within s 5(1) of the ASIC Act that ASIC, an ASIC delegate or the DPP institutes, causes to be begun, or causes to be carried on, concerning conduct engaged in by a body corporate in the James Hardie Group or persons who were officers, employees or advisers of such a body corporate, where the conduct relates to matters that are or could have been the subject of a James Hardie investigation (s 3(1) definition).

• James Hardie Group and James Hardie Group restructure event. The James Hardie Group is defined as a list of named entities (including James Hardie Industries NV, ABN 60 Pty Ltd (formerly James Hardie Industries Limited), ABN 60 Foundation Limited, MRCF and related trusts and investments) and extends to bodies corporate that are or were related to, related parties of, or controlled by the named entities (s 3(1)). The Act imports Corporations Act concepts to determine relatedness and control (s 3(2)-(3)). James Hardie Group restructure event lists a non‑exhaustive set of corporate restructuring events that are captured by the investigation definition (s 3(1)).

• Authorised person. The Act specifies who may exercise the powers permitted by the abrogation: ASIC, an ASIC delegate, a person exercising or who has exercised powers under a warrant under s 36 of the ASIC Act or s 37 of that Act, the Director of Public Prosecutions (DPP), and a person who has instituted or caused a James Hardie proceeding to be begun or carried on (s 3(1)). The authorised person concept links privilege abrogation to actors with investigatory or prosecutorial roles.

• Privilege concepts. Legal professional privilege is defined to include privilege under Division 1 of Part 3.10 of the Evidence Act 1995 or a similar State or Territory law (s 3(1)). Professional confidential relationship privilege is defined by reference to Division 1A of Part 3.10 of the Evidence Act 1995 (NSW) or similar State or Territory law (s 3(1)).

Mechanically, the Act removes those privilege protections as between the specified James Hardie material and investigation/proceeding contexts (s 4 and s 4A), while carving out particular statutory interactions (s 5) and leaving general privilege law intact beyond the targeted abrogations (s 6). The Act also modifies the interaction with the ASIC Act by stating that ASIC Act s 69 does not apply to James Hardie material for the defined purposes (s 4(3)) and by referencing warrants under s 36 and s 37 of the ASIC Act (s 4(2)(b)(i)-(ii), s 3(1) authorised person definition).

The Act identifies a closed set of corporate entities, categories of persons and classes of documents that are directly affected. Primary affected parties are the bodies listed in the James Hardie Group definition and any bodies that were at any relevant time related to, a related party of, or controlled by James Hardie Industries NV or ABN 60 Pty Ltd (s 3(1) and accompanying notes). The Act also reaches the officers, employees and professional advisers of those entities by including their conduct in the definitions of James Hardie investigation and James Hardie proceeding (s 3(1) definitions of "James Hardie investigation" and "James Hardie proceeding").

More specifically:

• Corporates in the named group. Entities explicitly named in s 3(1) paragraphs (a) to (i) are directly in scope. The definition extends to other corporate entities that are or were related to, related parties of, or controlled by those named entities, with relatedness and control to be determined by reference to Corporations Act s 50 and s 50AA respectively (s 3(1)(j)-(l), s 3(2)-(3)). That import of Corporations Act concepts means that the relevant corporate family may be broader than just the currently named bodies.

• Officers, employees and professional advisers. A James Hardie investigation may relate to conduct of persons who are, or were, officers, employees or professional advisers of a James Hardie Group entity (s 3(1)(g)). The definition of professional adviser expressly includes legal advisers, accountants, financial advisers, auditors and actuaries (s 3(1)). Thus communications with such advisers can be within the set of materials that lose privilege protection in the specified contexts.

• Authorised persons and decision makers. The class of authorised persons who may request or use James Hardie material is defined at s 3(1) and includes ASIC, ASIC delegates, persons exercising powers under warrants under ss 36-37 of the ASIC Act, and the DPP. The definition also includes a person who has instituted a James Hardie proceeding or caused one to be begun or carried on (s 3(1) authorised person). Because a James Hardie proceeding is itself defined as a proceeding instituted by ASIC, an ASIC delegate or the DPP (s 3(1) definition of "James Hardie proceeding"), the Act effectively channels decision authority to those regulatory and prosecutorial actors.

• Third parties in possession of documents. James Hardie material includes Commission records (s 3(1)(a)) and books or information that ASIC, an ASIC delegate or the DPP requests or receives after commencement (s 3(1)(c)-(e)). It also covers books taken under a warrant after commencement (s 3(1)(b)). Thus private custodians of documents, for example law firms or accountants holding records, are in scope to the extent they hold the defined material.

• Interacting statutory regimes. Except where the Act preserves privilege for specified statutory purposes (s 5), persons subject to other statutory production regimes will see the James Hardie-specific abrogations operate in parallel with those regimes. The Act references the Freedom of Information Act 1982, the Archives Act 1983 and the Proceeds of Crime Act 2002 for limited preservation of privilege (s 5). It also cross‑refers to the Evidence Act 1995 and the ASIC Act 2001 for the purposes of overriding certain protections in the specific James Hardie contexts (s 4(3)-(4)).

Who decides what is in scope. Practical decisions about whether a given body is part of the James Hardie Group, whether a given document is James Hardie material, and whether a matter constitutes a James Hardie investigation or proceeding will be made by authorised persons and, where contested, by courts interpreting the Act and the Corporations Act references (s 3, s 4). The Act itself does not set out an administrative review mechanism. It does not create new offences or penalties in its own terms; it focuses on removing privilege and enabling authorised persons to obtain and use material (s 4-s 6).

The Act does not impose a broad bundle of novel affirmative duties in the form of reporting obligations or compliance programmes. Instead it creates specific rights for authorised persons and correspondingly reduces the protection of privilege for a defined set of material in particular contexts. Key rights, and the limited duties that follow, are:

Rights of authorised persons to obtain and use material. The Act explicitly provides that claims of legal professional privilege do not prevent authorised persons from requesting or requiring production or provision of James Hardie material, exercising powers under ASIC Act warrants, or receiving and using James Hardie material for the purposes of, or in connection with, a James Hardie investigation or James Hardie proceeding (s 4(2)). That is a statutory entitlement to obtain and rely upon material even where privilege would otherwise be raised.

Right to admit evidence despite privilege. The Act makes James Hardie material admissible in evidence in a James Hardie proceeding despite the ordinary rules about privilege in the Evidence Act 1995 or similar State or Territory laws and despite certain provisions of the ASIC Act (s 4(4)). This is a statutory modification of evidentiary rules for the limited class of proceedings.

Limits on privilege claims by others. Legal professional privilege is abrogated in relation to James Hardie material for the defined purposes (s 4(1)). Professional confidential relationship privilege is disapplied for James Hardie material for the purposes of, or in connection with, a James Hardie proceeding (s 4A(1)). The practical effect is that persons who would otherwise assert those forms of privilege cannot rely on them to block production or admission in the specified contexts.

Preservation of privilege for certain statutory purposes. Despite the abrogation, the Act preserves privilege for specified purposes under other statutes: if, apart from s 4, James Hardie material would have been privileged from production in legal proceedings for the purposes of subsection 42(1) of the Freedom of Information Act 1982 or subsection 33(2) of the Archives Act 1983, or privileged for disclosure/production under subsection 197(2) of the Proceeds of Crime Act 2002, then that material is taken still to be privileged for those statutory purposes (s 5). This creates a countervailing right to non‑disclosure in those specific statutory contexts.

Authorised person privilege unaffected. The Act clarifies that it does not abrogate or affect any claim of legal professional privilege or professional confidential relationship privilege made by an authorised person in relation to James Hardie material (s 4(5), s 4A(2)). Thus when ASIC or the DPP hold material, they may still assert privilege in relation to it.

No new criminal offences or specified fines. The Act contains no provision creating new criminal offences, civil penalties or prescribed fines for non‑compliance. It instead operates by removing privilege and permitting authorised persons to employ existing powers under the ASIC Act and to use the material in proceedings (see ss 3-4, and the references to warrants under ss 36-37 of the ASIC Act in s 4(2)(b)). The enforcement mechanism is therefore the exercise of existing investigatory and prosecutorial powers rather than the imposition of new sanctions within this Act.

Regulatory power to prescribe. The Act grants the Governor‑General power to make regulations necessary to carry out the Act (s 7). That creates a delegated legislative mechanism, but the Act does not itself set out specific regulatory requirements beyond the privilege regime.

Duties implied by the rights. Because authorised persons may require production and exercise warrant powers, custodians of James Hardie material can expect to face requests, requirements and warrants and therefore have an operational duty to respond to lawful processes. The Act does not set out a compliance timetable or detailed procedural steps; those will be governed by the powers it cross‑references and by existing law governing warrants, disclosure and court processes (s 4(2), s 3 definitions).

The Act does not create or specify new criminal offences, civil penalties or administrative sanctions within its text. There are no penalty provisions attached to failure to produce material, nor are there express enforcement fines or coercive monetary penalties in the Act itself. Enforcement therefore occurs through two mechanisms set out or implied by the text:

Exercise of existing statutory powers. The authorised persons who may obtain, secure and use James Hardie material are principally ASIC, ASIC delegates and the DPP, along with persons exercising powers under warrants issued under sections 36 and 37 of the ASIC Act (s 3(1) authorised person, s 4(2)(b)). Those powers, and the consequences of non‑compliance with requests or warrants, derive from the ASIC Act and other existing statutes rather than from this Act. Where a warrant is executed (s 3(1)(authorized person) and s 4(2)(b)(i)-(ii)), statutory warrant provisions and associated enforcement mechanisms in the ASIC Act will apply to the exercise and execution of the warrant, including any offences attached to obstruction or non‑compliance under the ASIC Act and associated instruments. The James Hardie Act itself does not recite or modify those penalty provisions.

Use of material in prosecutions or regulatory proceedings. The Act makes James Hardie material admissible in a James Hardie proceeding despite privilege rules that would otherwise prevent admission (s 4(4)). That means authorised persons, including the DPP, may deploy the material in existing criminal or civil proceedings. Any penalties that follow will be those available under the substantive law that is the subject of the proceeding. The Act therefore enables investigatory and prosecutorial use of material but does not itself prescribe outcomes.

Preservation of some privileges for other statutory contexts. Section 5 operates to preserve privilege in relation to particular statutory production rules (Freedom of Information Act s 42(1), Archives Act s 33(2), Proceeds of Crime Act s 197(2)). That limits the avenues by which other agencies could compel disclosure of the same material under those specific statutory heads. Those statutory regimes themselves contain their own enforcement provisions independent of this Act.

No internal enforcement body in the Act. The Act does not create a new regulator, tribunal or administrative agency to oversee compliance. The principal decision makers in practice will be authorised persons using their existing powers, and courts adjudicating disputes about applicability and scope when contested.

Regulations. The Governor‑General may make regulations required or permitted by the Act, or necessary or convenient to give effect to it (s 7). Regulations could potentially create procedural detail or penalties, but none are specified in the Act text itself; any such regulatory measures would require separate subordinate legislation.

In summary, enforcement operates by enabling authorised persons to use and admit material in existing investigative and prosecutorial processes and by facilitating the exercise of ASIC Act powers, rather than by adding penalty machinery to the statute itself (see s 4(2), s 4(4), s 3(1), s 5, s 7).

The Act explicitly cross‑references and modifies the operation of several Commonwealth statutes and incorporates State concepts by reference. Those interactions are limited, targeted and set out by reference:

Evidence Act 1995. The Act engages with the Evidence Act on two levels. It defines "legal professional privilege" by reference to Division 1 of Part 3.10 of the Evidence Act 1995 (s 3(1)), and it makes James Hardie material admissible in a James Hardie proceeding despite Division 1 of Part 3.10 of the Evidence Act 1995 (s 4(4)). The net effect is that while the Evidence Act defines the privilege ordinarily, the James Hardie Act disapplies the protective effect of that privilege in the specified circumstances.

Australian Securities and Investments Commission Act 2001. The Act references the ASIC Act in several ways. It imports the concept of "books" from s 5(1) of the ASIC Act in the definition of "books" as used in this Act (s 3(1)). The authorised person definition includes persons exercising powers under warrants issued under s 36 or exercising powers under s 37 of the ASIC Act (s 3(1), s 4(2)(b)). Section 4(3) expressly provides that s 69 of the ASIC Act does not apply in relation to James Hardie material for the purposes of, or in connection with, a James Hardie investigation or proceeding. The Act also notes that paragraph 76(1)(d) of the ASIC Act is not given effect to prevent admissibility of the material in a James Hardie proceeding (s 4(4)). These are targeted overrides of particular protective provisions within the ASIC Act for the specified material and contexts.

Corporations Act 2001. The Act imports concepts from the Corporations Act for determining whether a body corporate is "related to" or "controlled by" one of the named James Hardie entities (s 3(2)-(3)). Specifically, it directs that relatedness is to be determined in accordance with s 50 and control in accordance with s 50AA of the Corporations Act. That incorporation enlarges or clarifies the corporate family that the Act applies to, and it brings the Corporations Act's technical definitions to bear in disputes about scope.

Freedom of Information Act 1982, Archives Act 1983, Proceeds of Crime Act 2002. Section 5 creates a limited protective interaction with these statutes. If, apart from s 4, James Hardie material would have been privileged from production in legal proceedings for the purposes of s 42(1) of the FOI Act or s 33(2) of the Archives Act, or privileged from disclosure or production under s 197(2) of the Proceeds of Crime Act, then, for the purposes of those subsections, the material is taken still to be privileged (s 5(1)-(2)). In short, the Act does not remove pre‑existing privilege for those specific statutory purposes.

Special Commission of Inquiry (James Hardie Records) Act 2004 (NSW). The Act references definitions given in the NSW Special Commission Act for the terms "James Hardie Special Commission of Inquiry" and "record" (s 3(1) and the opening notes to the James Hardie material definition). The Act expressly includes records made, kept, or received by the Commission as James Hardie material (s 3(1)(a)). That pulls NSW Commission materials into the Commonwealth privilege adjustment.

State law privilege regimes. The Act refers to "legal professional privilege" and "professional confidential relationship privilege" as including the corresponding provisions in the Evidence Act 1995 or similar State or Territory laws (s 3(1)). Section 4A's reference to professional confidential relationship privilege cites the NSW version of the Evidence Act (s 4A). The Act therefore interacts with State privilege law by defining the categories and then abrogating or disapplying them for specified contexts.

Practical effect of these interactions. The Act operates as a targeted, context‑specific modification of the operation of privilege and evidence law in relation to named material and specified investigatory and prosecutorial processes. It does not broadly repeal or amend the other statutes; rather it states how those statutes' usual protections yield when James Hardie material is being used in the defined contexts (s 4(3)-(4), s 5). Procedures for warrants, execution, and the consequences of obstructing ASIC are still governed by the ASIC Act; evidentiary rules remain in the Evidence Act except insofar as s 4(4) makes James Hardie material admissible in a James Hardie proceeding. The Act therefore creates a limited point of interaction rather than wholesale substitution of other statutory regimes.

The text supplied contains only the original provisions of the James Hardie (Investigations and Proceedings) Act 2004, including the short title, commencement, definitions, the privilege abrogation provisions, interaction clauses, and a regulation‑making power (ss 1-7). The Act commences on the day after receiving Royal Assent (s 2). There are no amendment provisions, amendment dates, or subsequent textual changes included in the source supplied.

The Act contains internal notes that clarify interpretive matters within the definitions, for example that entities that were at any time related to, related parties of, or controlled by the named James Hardie entities remain part of the James Hardie Group for the purposes of the Act (s 3(1) and accompanying notes). The Act also operationalises Corporations Act concepts by reference (s 3(2)-(3)). Beyond these definitional clarifications, the source text does not list any legislative history such as schedules, consequential amendments, transitional provisions, or side amendments to other Commonwealth statutes.

Because the source does not include subordinate instruments, regulations, or any subsequent legislative changes, the only entry in the Act's amendment history within the provided text is its own commencement specification (s 2). If one requires a formal parliamentary amendment history, commencement dates for subordinate regulations, or notes of consequential amendments to other statutes, those are not in the supplied material and would need to be obtained from parliamentary records or the consolidated statute register.

The Act does, however, authorise the Governor‑General to make regulations necessary for giving effect to it (s 7). The existence of that regulation‑making power means consequential or procedural detail could have been or could be inserted by subordinate legislation following enactment, but the supplied text does not reproduce any such regulations. Therefore the legislative record contained in the source ends with the operative provisions as enacted in 2004 and their immediate commencement.

The Act text supplied contains no references to judicial decisions, reported cases, or any litigation history. It does not cite any authority where the Act has been judicially interpreted or applied. The Act does reference the Special Commission of Inquiry report and hearings as sources of events that form part of the James Hardie investigation definition (s 3(1)(h) and (i)), but it does not record any judicial proceedings or case law interpreting the Act.

Although the supplied text does not include litigation history, the Act raises a number of legal questions that are naturally amenable to judicial determination if disputed, because the statutory scheme focuses on definitional boundaries and the interaction of privilege with investigatory and prosecutorial powers. Those potential issues flow directly from the text and would be the likely subject matter of litigation were disputes to arise:

• Whether a particular document is "James Hardie material" as defined, including whether a document is a Commission record or was taken into possession under an ASIC Act warrant after commencement, or whether it was requested or received by ASIC, an ASIC delegate, or the DPP after commencement (s 3(1) definitions). Courts would be required to construe those terms against the factual matrix.

• Whether a given entity falls within the James Hardie Group, especially where the entity was "related to" or "controlled by" a named body corporate at a prior time. The Act directs that relatedness and control are to be determined by reference to the Corporations Act s 50 and s 50AA respectively (s 3(2)-(3)), which would invite judicial application of those Corporations Act provisions.

• The scope of "for the purposes of, or in connection with" a James Hardie investigation or proceeding. The Act uses that phrase repeatedly when abrogating privilege and defining James Hardie material (ss 3-4). Courts would likely be asked to apply that standard to concrete fact patterns.

• The boundaries of the abrogation in relation to authorised persons asserting privilege versus other holders of privilege. The Act preserves claims of privilege made by authorised persons themselves (s 4(5), s 4A(2)), which could lead to disputes about when an authorised person is allowed to invoke privilege in relation to material they hold.

• Interaction with other statutory privilege protections. Section 5 preserves privilege for particular purposes under the FOI Act, Archives Act and Proceeds of Crime Act. Litigation might be required to determine how those preservations operate in specific circumstances where multiple statutory regimes could be engaged.

None of the above litigation scenarios are recorded in the Act text; they are analytical points derived from the statute’s definitions and cross‑references. The Act as supplied therefore manifests no internal litigation history and does not name any judicial decisions.

The Act contains several points that may cause practical surprises if not closely read. These are concrete features of the statute, grounded in its text, that affect scope, procedure and legal strategy.

Broad, partly retrospective‑looking scope of "James Hardie material". The definition includes Commission records and books or information that ASIC, an ASIC delegate or the DPP requests, requires, receives or takes possession of after commencement (s 3(1)(a)-(c), (d)-(e)). That means materials preserved in archives or held by third parties may become subject to production or use after the Act commences if they are requested or taken under warrant. Practitioners should not assume that privilege preserved at an earlier time necessarily remains effective for use in these defined contexts.

Wide corporate family capture. The James Hardie Group definition extends beyond the named entities to bodies that are, or were, related to, related parties of, or controlled by the named entities (s 3(1)(j)-(l)). The Act imports Corporations Act s 50 and s 50AA to determine relatedness and control (s 3(2)-(3)). That can extend the Act’s reach to entities that were once connected to the named companies but are no longer, and raises factual questions as to historical corporate relationships.

Different treatment for investigations and proceedings. Legal professional privilege is abrogated for the purposes of, or in connection with, both James Hardie investigations and James Hardie proceedings (s 4(1)). By contrast, professional confidential relationship privilege is disapplied only in relation to James Hardie proceedings (s 4A(1)). This split means that for an investigation privilege may still apply in relation to professional confidential relationship privilege, but not legal professional privilege. Practitioners should note that the two forms of privilege are treated differently and draft responses accordingly.

Authorised persons may still claim privilege. Sections 4(5) and 4A(2) make explicit that the statutory abrogations do not limit privilege claims made by authorised persons in relation to James Hardie material. That means that when ASIC or the DPP hold material, they retain the ability to assert privilege where appropriate. The practical implication is that the statutory right to obtain and use material operates asymmetrically: authorised persons obtain access to others’ material but can still choose to assert privilege over material they control (s 4(5), s 4A(2)).

Selective preservation for other statutory regimes. Section 5 creates an exception to the abrogation by preserving privilege for the narrow purposes of specified subsections of the FOI Act, the Archives Act and the Proceeds of Crime Act (s 5(1)-(2)). This means that although privilege is abrogated for James Hardie investigations and proceedings, the same material may still be protected from disclosure under those other statutory contexts. Practitioners should be careful when engaging with multiple disclosure avenues because the Act does not effect a blanket removal of all statutory privileges.

Tension and circularity in definitions. The authorised person definition includes "a person who has instituted a James Hardie proceeding or caused a James Hardie proceeding to be begun or carried on" (s 3(1) authorised person). A James Hardie proceeding is itself defined as a proceeding that ASIC, an ASIC delegate or the DPP institutes, causes to be begun or causes to be carried on (s 3(1) definition). That circularity indicates the class of persons who can be authorised is effectively intended to be those regulatory/prosecutorial actors; but the drafting creates an appearance of self‑reference that may require careful reading in legal argument.

No prescribed procedure for contested claims. The Act does not set out a bespoke procedural route for resolving disputes about whether a document constitutes James Hardie material or whether an entity falls within the James Hardie Group. Subject matter disputes will be resolved through ordinary judicial processes or through exercise of existing statutory powers, not by a new, separate administrative mechanism set out in the Act.

No penalty schedule. Because the Act does not specify sanctions or fines for non‑compliance, the practical leverage for enforcement is the existing powers of ASIC (including warrant powers) and prosecutorial remedies. Parties should be aware that the Act itself does not provide a statutory penalty regime to attach to non‑production apart from the powers it enables (s 4(2), s 3(1) references).

Cross‑jurisdictional material. The Act imports NSW Commission records and NSW privilege concepts (references to the Special Commission Act and to the NSW Evidence Act divisions) (s 3(1), s 4A). Practitioners must therefore consider federal and State instruments when assessing privilege and production obligations.

Taken together, these "gotchas" are textual features: the breadth of definitions, selective preservation of privilege in some contexts but not others, authorised persons’ retained privilege, and the lack of bespoke procedures or penalties. All flow directly from the Act’s drafting (ss 3-6).

Compliance under this Act is primarily about identification, process readiness and responding to lawful requests, warrants and proceedings. The Act does not set out detailed procedural rules, so compliance will largely consist of following the powers and procedures in the ASIC Act and in courts, while attending to the Act’s specific definitions and carve‑outs. Practical steps grounded in the Act’s text are:

1. Map the corporate family. Determine whether your entity, or any entity you advise, is part of the James Hardie Group as defined in s 3(1). The definition names several entities and extends to bodies that are or were related to, related parties of, or controlled by the named corporations. The Act requires application of the Corporations Act tests for relatedness and control (s 3(2)-(3)). Conduct a historical corporate ownership and control review to identify entities that might be captured.

2. Identify James Hardie material. Create an inventory of documents and information that would meet the statutory definition of James Hardie material (s 3(1)). That includes:

   • Records made, kept, or received by the Special Commission of Inquiry (s 3(1)(a));
   • Books that could be taken into possession or secured under warrants under the ASIC Act after commencement for the purposes of a James Hardie investigation or proceeding (s 3(1)(b));
   • Books or information that ASIC, an ASIC delegate, or the DPP might request, require, receive or use for those purposes after commencement (s 3(1)(c)-(e));
   • Other books or information relevant to a James Hardie investigation or proceeding that an authorised person receives after commencement (s 3(1)(e)).

3. Establish production protocols. Because s 4(2) allows authorised persons to request, require, secure by warrant, receive and use James Hardie material, custodians should establish procedures to:

   • Verify the identity and authority of any person purporting to be an authorised person under s 3(1);
   • Check the legal basis for any request or warrant (for example, the ASIC Act warrant under s 36 or powers under s 37 cited in s 4(2)(b));
   • Preserve chain of custody and a clear record of communications, production and any conditional claims;
   • Seek immediate legal advice on whether material is James Hardie material and on the correct process for responding to requests or warrants.

4. Privilege handling. Legal professional privilege is abrogated for James Hardie material in relation to investigations and proceedings (s 4(1)-(4)), and professional confidential relationship privilege does not apply for proceedings (s 4A(1)). Therefore:

   • Do not assume standard privilege objections will succeed in the defined contexts; for James Hardie investigations and proceedings, privilege may not block production or admission (s 4(4));
   • However, note that authorised persons themselves may assert privilege where they hold material (s 4(5), s 4A(2));
   • Also note the limited preservations in s 5 for FOI, Archives and Proceeds of Crime Act contexts; assess whether those statutory protections apply before releasing material under those regimes.

5. Coordinate with advisers. Because "professional adviser" is expressly defined to include legal advisers, accountants, auditors, actuaries and financial advisers (s 3(1)), advisers who hold relevant communications should be alerted that their records may be subject to requests or warrants. They should be prepared to perform the same identification and production protocol checks.

6. Prepare for admissibility. The Act makes James Hardie material admissible in James Hardie proceedings notwithstanding ordinary privilege rules (s 4(4)). Where litigation is possible:

   • Preserve originals and maintain accurate logs of when, how and to whom material was produced;
   • Consider whether any preserved privilege under s 5 is applicable to prevent production in other statutory contexts.

7. Manage cross‑jurisdictional records. The Act includes Commission records and references State Evidence Act divisions (s 3(1)(a), s 4A), so compliance may require co‑ordination where documents are held in State archives or by State authorities. Check whether the FOI, Archives Act or Proceeds of Crime Act protections in s 5 apply.

8. Engage with regulatory processes. If approached by ASIC, the DPP or a delegate, the Act gives those authorised persons statutory footing to obtain material (s 4(2)). Respond constructively but with legal oversight. For warrants, comply with the ASIC Act warrant procedures referenced by the Act (s 4(2)(b)(i)-(ii)).

9. Consider internal controls and document retention policies. Given that documents created historically or held by third parties may be captured by the Act, review document retention policies and internal record‑keeping systems to ensure accurate inventories and quick retrieval when lawful requests arrive.

10. Monitor subordinate legislation. The Governor‑General may make regulations under s 7. Keep an eye on any regulations made to give effect to the Act, as they could prescribe procedural detail relevant to compliance.

Following these steps aligns operational practice with the statutory framework: identify who and what is in scope per s 3; be prepared to respond to authorised person requests and ASIC Act warrants per s 4(2); understand that privilege is abrogated for the defined purposes but preserved for certain other statutory contexts per s 5; and obtain immediate legal advice when disputed scope or procedural issues arise.