Royal Commission (Custody of Records) Act 1992

The Act pivots on the defined term “record of the Royal Commission” (s 4(1)). That umbrella term captures any record prepared or obtained for the purposes of the Commission by the Commission, a member or an officer. It comprises five sub‑categories: confidential record, internal working document, private submission, administrative record, and transcript record. Each sub‑category is separately defined. A “confidential record” means a record obtained by or on behalf of the Commission (under compulsion or otherwise) that is the subject of an assurance of confidentiality, or a record of a statement, interview or information that was given such an assurance. It expressly excludes a transcript record. An “internal working document” is a working record prepared by the Commission, a member or an officer for internal purposes. A “private submission” is a submission made under two specific paragraphs of the terms of reference (paragraph (1)1(e) or (1)2(e)). A “transcript record” is a record of evidence taken by the Commission, whether in private or not. “Administrative record” is defined simply as a record of an administrative nature relating to the Commission’s operations. “Prescribed exhibit” means an exhibit received during a hearing relating to items 1.1, 1.2, 1.3 or 1.4 of Schedule 1 to the terms of reference. The term “record” itself adopts the same meaning as under the State Records Act 2000, which is broad and includes documents, digital files, maps, photographs and any other recorded information. The Act also defines “former Commissioners” as the persons who were members before the Commission delivered its report. “Director of State Records” and “State archives collection” are imported from the State Records Act 2000, while “DPP” comes from the Director of Public Prosecutions Act 1991. “Regulatory body” includes the Police Force (WA and other jurisdictions), the Australian Federal Police, the Australian Crime Commission, and any other regulatory, revenue‑collecting or prosecuting body or authority, whether inside or outside the state. The Act’s definitions are exhaustive: the categories are mutually exclusive in some respects (confidential record expressly excludes transcript record) but a given document could fall into multiple categories (e.g. a private submission might also be a confidential record if it was given an assurance). The definition of “copy” is expansive: it includes a copy in a different form or medium. The Act’s structure, especially the access restrictions, depends entirely on accurately classifying each record into these definitions at the time of transfer to the State archives collection. Because sections 5 to 12 were deleted by the State Records (Consequential Provisions) Act 2000, the original transitional provisions that governed the Library Board’s initial custody and the process for transfer are no longer operative; the records are now held in the State archives collection under the State Records Act 2000, but subject to the special access regime in s 14.

The Act directly affects the Director of State Records (who must keep the records as State archives but is prohibited from providing access to the sensitive categories except as permitted: s 14(1a) and (2)). It affects the former Commissioners, who may access confidential records, internal working documents, private submissions and restricted transcript records for any purpose arising from the performance of their public functions as members (s 14(2)). The State (meaning the Crown in right of Western Australia, and its relevant agencies) is affected: it may access those records for the investigation and prosecution of offences (s 14(2)(a)). The State also has a separate right to access transcript records that are subject to a publication direction, and prescribed exhibits that are confidential records, for the purpose of conducting civil litigation involving the State (s 14(3)). The DPP and regulatory bodies are not directly named in the access provisions, but they would fall within “the State” or may be covered by the investigation and prosecution purpose. Persons who gave assurances of confidentiality or made private submissions are also affected: their records become locked for 75 years, but they themselves do not have a statutory right of access (only the Supreme Court can order access, and only after five years from the completion of all civil and criminal proceedings relating to the events the subject of the terms of reference: s 14(5)(c)). Any member of the public or organisation wishing to access these records must rely on a Supreme Court order under s 14(4), which is a costly and uncertain process that requires satisfying four cumulative conditions. The Library Board (now the State Records Commission) was originally affected by the transitional provisions (now repealed) but its role is now subsumed by the Director of State Records. The Act also affects “prescribed persons” for the purpose of the defamation and breach‑of‑confidence protection in s 16: the Crown, the Royal Commission, any member or officer of the Commission, any person appointed or employed by the Crown, and any delegate under the former s 15. They are immunised from suit for publication of records in the ordinary course of the inquiry or in performing functions under the Act. This protection affects potential plaintiffs (e.g. persons who made confidential statements) by removing their ability to sue even if publication causes reputational or personal harm. The Act does not grant any special rights to journalists, academics or descendants of persons named in the records; they face the same blanket lock and must apply to the Supreme Court.

The central duty is imposed on the Director of State Records by s 14(1a): to keep the records as State archives in accordance with the State Records Act 2000, but subject to the access prohibitions in s 14(2). The Director must not provide access to a confidential record, internal working document, private submission, or a transcript record that was the subject of a publication direction by the Royal Commission, except to the State for investigation/prosecution of offences, or to the former Commissioners for purposes arising from their public functions. That is a prohibition, not a discretion: the Director must refuse access unless one of the exceptions applies. A separate duty arises under s 14(3): the Director must provide access to transcript records subject to a publication direction, and to prescribed exhibits that are confidential records, to the State for the purpose of conducting civil litigation involving the State. This is a mandatory duty, not an option. The Act also creates a right for any person to apply to the Supreme Court for an order for access to any of the restricted records (s 14(4)). The Supreme Court has a discretion to grant that order, but only if it is satisfied of four cumulative conditions under s 14(5): (a) it is in the public interest to dispense with confidentiality or the publication restriction; (b) it is in the public interest for the person to have access; (c) at least five years have elapsed since the completion of all civil and criminal proceedings relating to events in the terms of reference; and (d) if the record is a restricted access archive under the State Records Act 2000, the order would not contravene those restrictions. The Supreme Court may impose conditions on the order (s 14(6)). The Act gives the former Commissioners a right to access without a court order for any purpose arising from their public functions (s 14(2)). That is a broad right, not limited to legal proceedings or specific investigations. The State’s right for civil litigation under s 14(3) is also mandatory, but it is limited to civil litigation involving the State and to the specific categories of records listed. The Act does not create a general right of access for regulatory bodies; they must rely on the “State” exception for investigation and prosecution, which presumably includes police and prosecuting authorities, but the definition of “regulatory body” in s 4 is not used in the access provisions. The Act also grants a right of protection: prescribed persons are immune from defamation and breach‑of‑confidence claims for publication of records in the ordinary course of the inquiry or in performing functions under the Act (s 16). That is a substantive right that extinguishes liability that would otherwise exist. There are no duties imposed on private persons or former witnesses, except the general prohibition in s 3(2) that a record of the Royal Commission shall not be dealt with in a way that prevents it from being dealt with under this Act.

The Act itself contains no express penalty provisions for breaches of its access restrictions. Instead, enforcement relies on two mechanisms. First, the prohibition in s 14(2) is framed as a direction to the Director of State Records not to provide access. If the Director were to grant access in contravention of that prohibition, the Director would likely be in breach of the Act and may be subject to legal proceedings (e.g. an injunction or judicial review) to compel compliance. Additionally, because the prohibition operates despite Part 6 of the State Records Act 2000 (s 14(8)), the normal access provisions of that Act cannot be used to override this Act. The State Records Act 2000 does contain its own enforcement provisions (including offences for unauthorised access), but the Royal Commission (Custody of Records) Act specifically overrides that Act to the extent of any inconsistency (s 3(1)(b)). So the primary enforcement for access violations is the court’s supervisory jurisdiction. Second, s 3(3) explicitly saves the operation of s 20 of the Royal Commissions Act 1968. That section (the exact text of which is not reproduced here, but is well known) makes it an offence for a person to publish or communicate evidence taken in private before a Royal Commission, or any document obtained under compulsion, without authorisation. The saving means that anyone who publishes or communicates a restricted record in breach of the Royal Commissions Act (and not covered by the s 16 protection) could be criminally prosecuted. That is likely the principal penalty risk. The Act also contains an ouster clause in s 15(8): no action or failure to act under certain now‑repealed sections (ss 6-9 and 13, and under the Library Act as applied by ss 10 or 14, and under s 15 itself as those provisions operated before the commencement of the State Records (Consequential Provisions) Act 2000) is liable to be challenged, appealed, reviewed, quashed or called in question in any court on any account. This ouster prevents any court from examining the legality of the Royal Commission’s or former Commissioners’ decisions regarding the custody, transfer or disposal of records during the transitional period. It is a very strong bar on judicial review, effectively extinguishing any cause of action one might have had for mishandling of records at that time. The Act does not create any civil penalty or criminal offence specific to this Act. There is no provision for fines or imprisonment. The enforcement regime is thus indirect: the State Records Act’s general offences (if not overridden) may apply; the Royal Commissions Act s 20 is explicitly preserved; and the ouster clause ensures that no one can challenge past actions. The Act itself is designed to be enforced through the court’s contempt power if a person (such as the Director) disobeys the prohibition, or through a refusal to grant access.

The Act takes an extraordinarily strong overriding position. Section 3(1) provides that the Act has effect notwithstanding (a) the Royal Commissions Act 1968, (b) the State Records Act 2000, (c) any other written law whether enacted or made before or after this Act is enacted, or (d) any other law. This means that even if later statutes purport to grant access to these records, this Act will prevail because it explicitly overrides future laws. However, s 3(3) preserves the operation of s 20 of the Royal Commissions Act 1968, which is the offence provision for unauthorised publication of evidence. That section continues to apply, so a person who obtains access under this Act (or otherwise) and then publishes restricted material could still be prosecuted under the Royal Commissions Act if the publication is not authorised. The Act also binds the Crown in right of the State and, to the extent of legislative power, the Crown in all other capacities (s 3(4)), meaning federal agencies and other state governments are bound when acting in Western Australia. The primary interaction is with the State Records Act 2000. The records have been transferred to the State archives collection under transitional provisions of the State Records (Consequential Provisions) Act 2000. Section 14(1) of this Act applies to those records. Under s 14(1a), the Director of State Records must keep them as State archives in accordance with the State Records Act, but only subject to this Act’s restrictions. The normal access regime in Part 6 of the State Records Act 2000 is overridden: s 14(8) states that the prohibition in s 14(2) has effect despite that Part. So a person cannot use the State Records Act’s open access or formal access application processes to obtain these records. The State Records Act’s definition of “record” is adopted (s 4). After 75 years, the restrictions in s 14 cease to apply unless the record is declared an exceptionally sensitive archive under s 48 of the State Records Act (s 14(9)). That section of the State Records Act allows the State Records Commission to direct that certain archives remain restricted beyond the standard 75 years on the ground of exceptional sensitivity. This Act thus defers to the State Records Commission’s determination for the post‑75 year period. The Act also interacts with the Library Board of Western Australia Act 1951 (the Library Act), which was applied by now‑repealed sections for the initial transfer of records. The Library Board’s role is now historical. The Act also interacts with the Director of Public Prosecutions Act 1991, since “DPP” is defined and used in the definition of “regulatory body” (though not directly in the access provisions). There is no interaction with federal freedom‑of‑information legislation because the Royal Commission was a state instrumentality. The Act’s supremacy clause would likely override any later state FOI law amendments. The ouster clause in s 15(8) prevents any judicial review under the common law or any written law of actions taken under the repealed transitional provisions. This is a significant departure from normal administrative law, effectively immunising those decisions from court scrutiny.

The Act was originally enacted as the Royal Commission (Custody of Records) Act 1992 (No. 43 of 1992), assented to on 27 October 1992 and commencing on the same day. It was almost immediately amended by the Royal Commission (Custody of Records) Amendment Act 1992 (No. 67 of 1992), assented to 11 December 1992 but backdated to commence on 27 October 1992. That 1992 amendment inserted the definition of “prescribed exhibit” and amended s 14 to include civil litigation access for the State. The most significant amendments were made by the State Records (Consequential Provisions) Act 2000 (No. 53 of 2000), which came into operation on 1 December 2001. This brought the Act into line with the new State Records Act 2000 regime. The amendments: (a) replaced references to the “Library Board” and “Director of State Records” with updated definitions; (b) deleted sections 5 to 12 entirely (these had dealt with the original transitional arrangements for transfer of records to the Library Board, categories of records to be kept as State archives, and the Royal Commission’s power to give directions as to custody); (c) amended s 3 to include the State Records Act 2000 in the override; (d) rewrote s 14 to replace the previous access regime (which had referred to the Library Act and an earlier class of “State archives” defined differently) with the current regime keyed to the State Records Act; (e) amended s 15 to delete subsections (1) to (7) (which had contained delegation and other administrative powers that became redundant after the transfer) and to add the ouster clause protecting past actions; and (f) amended s 13 to delete subsections (2) and (3) relating to copies of records held by the Library Board. Later, the Australian Crime Commission (Western Australia) Act 2004 (No. 74 of 2004) s 71 amended the definition of “regulatory body” in s 4(1) to replace the now‑defunct “National Crime Authority” with the “Australian Crime Commission”. That amendment commenced on 1 February 2005. The compilation table shows only one reprint (Reprint 1 as at 6 February 2004). No further substantive amendments have been made. The Act as it stands is essentially the 1992 Act as gutted and re‑worked by the 2000 consequential amendments, with a minor update to keep the regulatory body definition current. The deleted sections 5-12 are still relevant for understanding the original architecture, but they have no operative legal effect.

The Act has generated very little reported judicial consideration. No cases are cited in the source text, and no widely reported Supreme Court of Western Australia decisions appear to have dealt with applications under s 14(4) for access orders. The ouster clause in s 15(8) would have prevented any challenge to the Royal Commission’s or former Commissioners’ actions under the repealed transitional provisions, likely dissuading litigation on those issues. It is possible that some applications have been made to the Supreme Court but have not been publicly reported, or were dealt with in chambers. The narrow wording of s 14(4) and the stringent conditions in s 14(5) make it very difficult for any applicant to succeed. The requirement that at least five years have elapsed since the completion of all civil and criminal proceedings relating to the events the subject of the terms of reference (s 14(5)(c)) is a high hurdle; the terms of reference covered events that led to a range of prosecutions and civil actions (including the WA Inc litigation itself, which was concluded in the late 1990s or early 2000s). Even after that five‑year window, the applicant must satisfy the court that it is in the public interest to dispense with confidentiality and that it is in the public interest for the applicant personally to have access. The Supreme Court would weigh the original assurance of confidentiality, the nature of the record, and the public interest in accountability. The lack of reported decisions suggests either that few applications have been made or that the applications that were made were dismissed summarily. The Act’s ouster clause may also have been tested: if anyone attempted to challenge a pre‑2001 action (e.g. a decision to destroy a record or to classify it as confidential), the court would likely strike out the proceeding as barred by s 15(8). There may have been unsuccessful attempts to judicially review the Director of State Records’ refusal to grant access under the State Records Act 2000, but such a challenge would be met with the override in s 3(1)(b) and s 14(8). In short, the litigation history appears to be a blank slate, which is itself a consequence of the Act’s effective lock on access and its immunities.

Several features of the Act are easy to overlook. First, the definition of “confidential record” turns on whether an assurance of confidentiality was given “by or on behalf of the Royal Commission”. An assurance given by a third party (such as a witness who insisted on confidentiality before being heard) would not qualify unless the Commission adopted it. However, the definition does not require the assurance to be in writing; an oral assurance given by a counsel assisting would likely be enough. Second, the prohibition on access in s 14(2) covers “internal working document” and “private submission” even if they are not confidential. That means purely factual internal memos that have no sensitivity are locked for 75 years. Third, the right of the State to access for investigation and prosecution of offences is not limited to Western Australian offences; it would extend to federal offences and offences in other states, since “regulatory body” includes non‑state bodies. But the right is not automatic - the Director must provide access, but the Act does not prescribe a procedure or timeline. Fourth, the Supreme Court’s power to order access under s 14(4) is subject to the condition in s 14(5)(d) that any existing restrictions under the State Records Act 2000 must not be contravened. That gives the State Records Commission an effective veto: if a record is a restricted access archive under that Act, the court cannot override those restrictions, no matter how compelling the public interest. Fifth, the Act does not expire or have a sunset clause; the 75‑year lock runs from the date of the record’s creation (determined under s 3(6) of the State Records Act 2000). That means records created in 1991 will only become open in 2066, and sensitive records could be locked further by the State Records Commission. Sixth, the protection from defamation and breach of confidence in s 16 is extremely broad. It covers “publication of any record of the Royal Commission” in the ordinary course of the inquiry or in performing functions under this Act. That means a prescribed person could publish even highly defamatory material from a transcript or submission without liability, as long as the publication occurred in the course of the inquiry (e.g. during a public hearing) or in performing a function under the Act (e.g. a former Commissioner releasing a record for his public functions). This protection is not limited to “good faith” or “reasonable” publication; it is absolute. Seventh, the Act binds the Crown in all its capacities, but only “subject to the limits of the legislative power of the State”. This means a federal agency could argue that Commonwealth records or Commonwealth‑related records are not covered, though the terms of reference and the Royal Commission were state‑appointed. Eighth, the ouster clause in s 15(8) is not limited to actions taken before the 2001 amendments; it covers any challenge to actions under the specified sections “as this Act and that Act operated before the commencement of the State Records (Consequential Provisions) Act 2000”. So any decision made by the Royal Commission or former Commissioners regarding custody, disposal, or classification under the original Act is forever immunised from review. Ninth, the Act does not contain any provision for the variation or revocation of a Supreme Court order once made; s 14(6) allows conditions, but there is no mechanism for a later order to modify an earlier one if circumstances change. Finally, the term “record” has the same meaning as in the State Records Act 2000, which includes electronic records. But the Act was enacted in 1992 and amended in 2000, before modern digital record‑keeping practices were widespread; the Act’s provisions on “copies” (s 13) assume a paper‑based world. The application to born‑digital records (including emails and databases) could create ambiguities about what constitutes a “copy” and how access restrictions apply to metadata.

Compliance depends on one’s role. For the Director of State Records, the primary duty is to keep the records as State archives and to strictly enforce the access prohibitions. The Director must ensure that no access is given to the restricted categories except as expressly permitted. This requires maintaining a clear classification of each record into the defined categories (confidential record, internal working document, private submission, transcript record with publication direction, administrative record, and prescribed exhibit). The Director should have a register or database that records any assurances of confidentiality given by the Commission, as those define “confidential record”. When a request for access is received, the Director must determine whether the requester falls within an exception: (a) the State for investigation/prosecution of offences; (b) the former Commissioners for public functions; (c) the State for civil litigation involving the State (limited to transcript records with a publication direction and prescribed exhibits that are confidential records); or (d) a person who has produced a Supreme Court order under s 14(4). The Director should verify the identity and authority of the requester (e.g. a letter from the DPP or a police officer confirming a current investigation). For the State’s civil litigation access under s 14(3), the Director must ensure the litigation involves the State and that the request relates only to the specified categories. The Director should also keep a record of all access granted and the basis for it. For the former Commissioners, the Director may request a written statement that the access is for a purpose arising from the performance of their public functions; the Director is not required to assess the merits of that purpose but should ensure the requester is indeed a former Commissioner. For Supreme Court orders, the Director must comply with any conditions imposed. The Director must also be mindful of the five‑year rule in s 14(5)(c): access cannot be ordered by the court until all related proceedings are concluded and five years have passed. However, the Director does not enforce that condition; that is for the court to determine. The Director should also coordinate with the State Records Commission regarding any determination under s 48 of the State Records Act 2000 for exceptionally sensitive archives after 75 years (s 14(9)). For the State (including police, DPP and other prosecutorial and investigative agencies), compliance means making access requests only for the specified purposes: investigation and prosecution of offences, or civil litigation involving the State. The access must be for a genuine purpose; requesting records for research or policy development would fall outside the exceptions. The State should provide written confirmation of the purpose and, for civil litigation, identify the specific proceeding. For the former Commissioners, compliance is straightforward: they may access records for any public function purpose, but they should keep records of what they access and for what function, as the immunity in s 16 only covers publication in the performance of functions under the Act. For any other person seeking access, the only route is an application to the Supreme Court under s 14(4). The applicant must be prepared to satisfy the four conditions in s 14(5). Practically, the applicant should gather evidence to demonstrate: (a) the public interest in dispensing with confidentiality (e.g. exposing wrongdoing, historical research of significant value); (b) the public interest in them personally having access (which may require showing they are a journalist or historian with a track record of responsible use); (c) that at least five years have passed since the conclusion of all civil and criminal proceedings relating to the terms of reference events (this may require checking the history of WA Inc litigation and any subsequent related matters); and (d) that the record is not a restricted access archive under the State Records Act, or if it is, that the order would not contravene the restrictions (which may require a submission from the State Records Commission). The applicant should also consider whether they could instead wait until the 75‑year lock expires (if it will do so in a reasonable timeframe). For anyone who holds a record of the Royal Commission not in the State archives collection (e.g. a journalist who obtained a copy during the inquiry), they must not deal with it in any way that prevents it from being dealt with under the Act (s 3(2)). That likely prohibits destruction, alteration, or permanent removal from the jurisdiction, but they are otherwise not directly restricted from possessing it, though publication could attract liability under s 20 of the Royal Commissions Act 1968.