James Hardie Special Commission of Inquiry. The body established by Letters Patent dated 27 February 2004 and 30 June 2004 to investigate matters relating to the foundation of the Medical Research and Compensation Foundation. Its records are the subject of the Act.

Record. Defined in section 3(1) as having the same meaning as in the State Records Act 1998. That Act defines a record broadly to include any document or other source of information compiled, recorded, or stored in any medium, and includes anything from which sounds, images, or writings can be reproduced.

Transferred record. Defined as a record that ASIC has control of under Part 2. This concept is central to sections 7 and 8, which govern the use and admissibility of such records.

Public office. Not explicitly defined but referenced in sections 5 and 6. It refers to the entity entitled to control the records under section 7 of the State Records Act 1998 - typically a government department or agency that held the records from the Inquiry.

Facilitated party. Defined in section 10 as the Foundation (Medical Research and Compensation Foundation), Amaca Pty Limited, Amaba Pty Limited, or any other body or person prescribed by the regulations. These are the entities that can benefit from the evidentiary provisions of Part 3.

NSW court. Defined by reference to the Evidence Act 1995, meaning a court of New South Wales, including the Supreme Court, District Court, Local Court, and other tribunals exercising judicial power.

Civil proceedings. Defined in section 10 to include interlocutory or similar proceedings but expressly excluding proceedings relating to the imposition of a civil penalty. This means that the special admissibility rules in Part 3 apply only to civil claims for damages or other relief, not to penalty proceedings brought by regulators.

Legal professional privilege. Although not defined in the Act, sections 7 and 13(2)(a) refer to “privileged communication passing between a legal practitioner (in his or her capacity as a legal practitioner) and a person for the purpose of providing or receiving legal professional services.” The Act overrides this privilege for the stated purposes.

Protected confidence. Referenced in section 13(2)(b) by reference to Division 1A of Part 3.10 of the Evidence Act 1995. This refers to confidences protected by that Division, such as sexual assault communications. The Act overrides this protection for answers or records produced to the Inquiry in facilitated proceedings.

Contempt. Section 12(2) provides that the retention or use of a record by a facilitated party does not constitute contempt under the Special Commissions of Inquiry Act 1983 or any other law. This prevents the Commissioner or a court from punishing the party for using materials that might otherwise be subject to a non-publication direction or suppression order.

The Act directly impacts several categories of persons and entities. The most immediately affected are the public offices in New South Wales that hold records from the James Hardie Special Commission of Inquiry. Under section 5, these offices are compelled to provide or make available any record that ASIC requests, including providing electronic copies where available. This obligation is not discretionary; the office has no ground to refuse, because sections 7 and 8 override any privilege or secrecy obligations that might otherwise apply. The relevant public office is likely the Department of Premier and Cabinet or a similar agency that administered the Inquiry.

ASIC is the primary beneficiary of Part 2. It gains control of requested records and can then decide whether to give possession or custody to the ACCC or any other person for any purpose it considers appropriate in performing its functions under Commonwealth law. The note to section 4 references section 127(4) of the Australian Securities and Investments Commission Act 2001, which allows the ASIC Chairperson to authorise disclosure to foreign agencies such as the US Securities Exchange Commission. This means the records could flow to foreign regulators, affecting the position of anyone who provided sensitive information to the Inquiry under compulsion.

The Australian Competition and Consumer Commission is listed in sections 4(2) and 7 as a potential recipient of records. The Act prevents any person from objecting to the use of records by the ACCC, thereby giving the ACCC access to potentially privileged or otherwise restricted material for its own enforcement purposes.

The facilitated parties - the Medical Research and Compensation Foundation, Amaca Pty Limited, and Amaba Pty Limited - are the named entities that can benefit from Part 3. They may retain and use records already in their possession as at the commencement of the Act, and they can adduce answers and records from the Inquiry in civil proceedings that the Attorney General has designated by order. This gives them a significant evidentiary advantage in asbestos-related litigation, since they can use compelled evidence from the Inquiry that would otherwise be inadmissible or subject to privilege claims.

Witnesses who gave evidence to the Inquiry are affected because their answers and documents can now be used in civil proceedings against them, even if they would have been privileged. However, section 13(3) provides a limited protection: evidence is not admissible against a natural person if it may incriminate or tend to incriminate that person. Corporations are not protected by this carve-out.

Legal practitioners and their clients are affected because legal professional privilege is overridden for the purposes of both the transfer of records to ASIC and the admissibility of Inquiry materials in facilitated proceedings. This is a direct intrusion into the traditional common law privilege, justified by the Act’s purpose of facilitating investigation and litigation.

The Attorney General of New South Wales is given the power to trigger Part 3 by Gazette order. The order cannot be challenged in any court, and a court cannot prevent the making of such an order. This places significant control in the executive.

Courts are affected because the Act alters the usual rules of evidence. Under section 8(4), if a question of admissibility arises before a court where Part 3.10 of the Evidence Act 1995 does not apply, the court may order production and inspect the record to determine admissibility.

Duty of public office to provide records (section 5). A public office entitled to control a record must provide or make it available to ASIC as soon as practicable after ASIC requests it under section 4. If an electronic version exists, the office must ensure an electronic copy is provided or made available. This duty is unqualified: the office cannot refuse on grounds of privilege, confidentiality, or because the record was produced under compulsion.

Right of ASIC to retain and return records (section 6). ASIC may retain control of a record for as long as it considers desirable in relation to its functions or powers under Commonwealth law. When it no longer wishes to retain a record, it may request the original public office to take control back. That office must comply. This gives ASIC broad discretion over the timing and duration of its control.

Right of ASIC to give records to ACCC or other persons (section 4(2)). ASIC may give possession or custody of any record under Part 2 to the ACCC or any other person, whether within or outside NSW, for any purpose it considers appropriate. This right is not limited to Commonwealth enforcement purposes; it says “for any purpose it considers appropriate in the performance of its functions or exercise of its powers,” which is broad.

Right to object to use or disclosure is removed (section 7). A person cannot object to ASIC, the ACCC, or another person using a record, or disclosing any matter contained in it, on the grounds that it is privileged or that it would breach an express or implied obligation of non-disclosure, or that it was produced under compulsion. This extinguishes common law and statutory rights of objection.

Right to use transferred records in proceedings (section 8). A transferred record is to be treated as if ASIC lawfully obtained it. No law of the State prevents its use in any proceedings, and it is not rendered inadmissible if it would be admissible under Commonwealth law. Sections 23 and 31(2) of the Special Commissions of Inquiry Act 1983 do not prevent provision or use of the records.

Right of facilitated party to retain and use records (section 12). A facilitated party may retain and use records produced by a witness to the Inquiry that were in its possession when the Act commenced. This retention and use does not constitute contempt.

Right to adduce answers and records in facilitated proceedings (section 13). Answers made or records produced by a witness to the Inquiry are admissible in proceedings to which Part 3 applies, even if they would be privileged or would disclose a protected confidence. This right is subject to the limitation that evidence is not admissible against a natural person if it may incriminate that person.

Right to publish matters despite Commissioner’s direction (section 14). Paragraph 2 of the direction given by the Commissioner on 17 September 2004 does not prevent publication of matters in documents referred to in that paragraph for the purposes of facilitated proceedings. No action or penalty lies for such publication.

No right to challenge Attorney General’s order (section 11(3)). An order declaring that Part 3 applies cannot be challenged, reviewed, or called into question in any court. A court cannot prevent the order from being made. This removes any right of judicial review for affected parties.

Regulation-making power (section 15). The Governor may make regulations not inconsistent with the Act, and may specify that section 31(2) of the Special Commissions of Inquiry Act 1983 does not apply to a particular direction or class of records.

The Act itself creates no direct criminal penalties or civil pecuniary penalties. There is no offence for failing to comply with a request under section 5, nor is there a penalty for unauthorised use of records. Instead, the Act’s enforcement mechanism is largely negative: it removes legal barriers that would otherwise prevent the use or disclosure of records, and it extinguishes rights to object. The obligations on public offices under Part 2 are enforceable by the usual mechanisms of administrative law (though the Act does not oust judicial review for those provisions, unlike the ouster for Attorney General orders). If a public office fails to provide records as required, ASIC could potentially seek an order for specific performance or rely on the general law of mandamus, but the Act does not specify a penalty.

The absence of penalties is notable. For example, if a facilitated party uses a record outside the scope of proceedings designated by the Attorney General, the Act does not impose a sanction. However, that use would not be protected by Part 3, so the party could face consequences under the Special Commissions of Inquiry Act 1983, such as contempt proceedings for breaching the Commissioner’s direction, or a claim for breach of confidentiality by the person who produced the record. The Act also does not impose any obligation on ASIC to safeguard records or to notify persons whose privilege is overridden.

The only specific enforcement reference is in section 14(2): “No action or penalty lies against a person who publishes a matter referred to in subsection (1) in or for the purposes of proceedings to and in respect of which this Part applies.” This creates a statutory defence against any penalty that would otherwise arise from breaching a direction, an obligation of non-disclosure, or some other legal bar. It protects facilitated parties and their representatives from being penalised for publishing material that was previously restricted.

In practice, the enforcement of the Act is left to the underlying law that governs the conduct of parties. If ASIC misuses records, it may be subject to Commonwealth oversight, including the Privacy Act if applicable. If a facilitated party introduces evidence that is not covered by the Attorney General’s order, the court could refuse to admit it, or the opposing party could object under the usual rules. The Act does not provide a remedy for persons whose privilege has been infringed, except the limited incrimination protection for natural persons in section 13(3).

The Act expressly overrides several provisions of New South Wales and Commonwealth laws, and interacts with others by implication.

State Records Act 1998. Section 9 provides that Part 2 has effect despite section 21 of the State Records Act. Section 21 of that Act imposes restrictions on the disposal or transfer of State records without authorisation. The override ensures that the transfer of records to ASIC is not obstructed by records-management requirements.

Special Commissions of Inquiry Act 1983. The interaction is direct and detailed. Section 8(2) provides that sections 23 and 31(2) of that Act do not prevent or restrict the provision or use of records under Part 2. Section 23 limits the admissibility in civil or criminal proceedings of answers made or documents produced by a witness to the Inquiry. Section 31(2) creates an offence for contravening a direction restricting publication. The Act lifts both restrictions for transferred records. Part 3 of this Act further overrides section 23(2) for facilitated proceedings (section 13(3) says “despite section 23(2)”), but preserves the operation of section 23 except as provided (section 8(3)). Section 15(2) allows regulations to further disapply section 31(2) in relation to particular directions.

Evidence Act 1995 (NSW). Section 13(2) overrides the rules regarding legal professional privilege and protected confidences (Division 1A of Part 3.10) in facilitated proceedings. Section 8(4) gives a court power to inspect a transferred record to determine admissibility if Part 3.10 of the Evidence Act is not applicable in that proceeding. The Act thus creates a specific regime for admissibility that displaces the ordinary law.

Trade Practices Act 1974 (Cth). Although not directly amended, the reference to the ACCC in sections 4(2) and 7 connects this Act to the Trade Practices Act. The ACCC can use transferred records in performing its functions under that Act, including competition and consumer protection enforcement.

Australian Securities and Investments Commission Act 2001 (Cth). Section 4 note refers to section 127(4) of that Act, which authorises the ASIC Chairperson to disclose information to foreign agencies. The Act thus facilitates cross-border sharing of Inquiry records.

Corporations Act 2001 (Cth). Not mentioned, but ASIC’s functions under that Act (e.g., investigating suspected contraventions) are the likely basis for requesting records. The Act ensures that ASIC can use the records without State law impediments.

Commonwealth law generally. Section 8(1) ties admissibility to whether the record “would be able to be used or would be admissible in proceedings had any law of the Commonwealth applied to or in respect of it.” This creates a hypothetical test: if a Commonwealth law would make the record admissible, then no State law can prevent it. This may give rise to interpretive questions about which Commonwealth law is relevant and whether the hypothetical application extends to procedural rules.

Privacy and confidentiality laws. The Act implicitly overrides any State privacy law that would prohibit disclosure of personal information in the records. However, it does not mention the Privacy and Personal Information Protection Act 1998 (NSW). A public office transferring records may still need to consider whether the Act sufficiently authorises the disclosure despite that Act. The literal override in sections 7 and 8 likely suffices, but the Act does not provide an express non-application clause for privacy legislation.

The Act was originally enacted in 2004 (Act No 78 of 2004). It was amended later in the same year by the Special Commission of Inquiry (James Hardie Records) Amendment Act 2004 (Act No 90 of 2004). The amending Act received assent and commenced on the date of assent. According to the annotations in the text provided, the amendment:

• Amended the definition of “Foundation” in section 3(1) to insert the Foundation’s ACN (Australian Company Number), likely to clarify the entity.
• Amended section 4(2) to replace “any other person or body” with “any other person”, and to add the phrase “whether within or outside New South Wales”. This clarified the geographic scope of ASIC’s ability to give records to third parties.
• Amended section 7 to replace “or body” with “or other person” and to insert “or the disclosure of any matter contained in the record to ASIC, the ACCC or other person”. This expanded the scope of the non-objection provision to cover disclosure of matters contained in the record, not just use of the record itself.
• Amended section 8(1) to add the words “or given into the possession or custody of the ACCC or any other person in the performance of its functions or the exercise of its powers under Commonwealth law”. This ensured that records given by ASIC to third parties are treated as lawfully obtained by those third parties.
• Amended section 8(2)(c) and (d) to reflect the same wording changes: adding “or other person” and clarifying that publication or use by the ACCC or other person is not restricted.
• Inserted section 16 and Schedule 1, which contain savings and transitional provisions. Schedule 1 clause 1 provides that section 7, as amended, extends to the giving of possession or custody of a record by ASIC to the ACCC or any other person before the commencement of the amending Act. This retrospective validation ensures that earlier transfers are not rendered invalid by the amendment.

The amendment thus largely tidied up the original Act to confirm that non-ASIC recipients (including the ACCC) can use and disclose the records, and that transfers that had already occurred were lawful. The savings provision indicates that some transfers occurred between the original Act’s commencement and the amending Act’s commencement, and needed to be validated.

No further amendments are shown in the provided text. The Act appears to be current as published, but the user’s text does not include any subsequent amendment history. The version provided includes the amendments up to Act No 90 of 2004.

The source text does not cite any cases that have interpreted or applied the Act. The Act’s provisions, especially the ouster of judicial review in section 11(3) and the broad override of privilege, are likely to have generated litigation, but we cannot assume any specific proceedings. The Act was clearly designed to support civil litigation against James Hardie entities, particularly asbestos-related claims. The Medical Research and Compensation Foundation and the facilitated parties were defendants in such litigation, and the Act allowed them to use the Inquiry’s findings and compelled evidence as a sword against other parties? Actually, the Act allows them to adduce evidence; it is not clear if they are plaintiffs or defendants. The Foundation was established to compensate asbestos victims, and the Inquiry investigated its establishment. The facilitated parties are likely defendants or contributors. Either way, the Act aids them in relying on Inquiry materials.

The absence of litigation history in the provided text may reflect that the Act is not widely litigated due to its narrow purpose. However, the ouster clause in section 11(3) suggests that the legislature anticipated attempts to challenge Attorney General orders. It is possible that challenges were brought but not recorded in the Act itself. The user instructs us not to invent cases, so we must state that the source does not contain any litigation history. We can note that the Act’s interaction with privilege and the ouster clause are potential areas of future litigation, but we cannot discuss specific cases.

Given the requirement for at least 200 words under this heading, we need to expand on the possible litigation consequences and the Act’s design to avoid litigation. We can discuss how the Act’s provisions might be tested, but without naming cases. We can also mention that the Act’s savings provision validates past transfers, which could have been challenged if not for the amendment. That is a litigation-related consideration.

The Act contains several traps for the unwary.

1. Override of legal professional privilege without notice or compensation. Sections 7 and 13(2)(a) wipe out privilege for records transferred to ASIC and for answers and records used in facilitated proceedings. There is no requirement to notify the privilege-holder, no mechanism to contest the override, and no compensation. This is a drastic interference with a fundamental common law right. Any person who communicated with a lawyer about matters investigated by the Inquiry could later find those communications in the hands of ASIC, the ACCC, or a foreign regulator, without ever being told.

2. The incrimination protection for natural persons is limited and asymmetrical. Section 13(3) says evidence is not admissible against a natural person if it may incriminate or tend to incriminate the person. This provides a shield for individuals. But it does not apply to corporations. Therefore, a company cannot object to the use of an incriminating answer or document against it in facilitated proceedings. Moreover, it only applies to admissibility under section 13(1); it does not prevent ASIC or the ACCC from using the records for enforcement purposes outside court proceedings.

3. Attorney General orders cannot be challenged. Section 11(3) states that an order declaring that Part 3 applies to civil proceedings “cannot be challenged, reviewed or called into question in any proceedings before a NSW court, and a NSW court cannot prevent any such proposed order from being made.” This ouster clause is extremely broad. It attempts to exclude all forms of judicial review, including for jurisdictional error. It may be constitutionally vulnerable under the Kable doctrine if it impairs the institutional integrity of NSW courts, but that has not been tested.

4. The definition of “civil proceedings” excludes civil penalty proceedings. Section 10 excludes “proceedings relating to the imposition of a civil penalty.” This means that ASIC or the ACCC cannot use Part 3 to adduce privileged Inquiry evidence in penalty proceedings. However, they can still use records obtained under Part 2 in such proceedings, because Part 2 does not have that exclusion. So a regulator could still use the records, but not under the facilitated party regime.

5. Part 3 only applies to proceedings designated by order. The order must be published in the Gazette. A facilitated party that seeks to rely on Part 3 must ensure the order has been made and covers the specific proceedings. The order cannot be challenged, but a party could argue that the proceedings do not fall within the order’s scope. If the order is ambiguous, only the Attorney General can clarify, and the court cannot review it.

6. The use of transferred records by ASIC is not limited to State proceedings. Sections 4(2) and 7 allow ASIC to give records to the ACCC or any other person, whether within or outside NSW. This means records could be used in federal proceedings or even overseas. The only constraint is that ASIC must consider the purpose appropriate in performing its functions or exercising its powers under Commonwealth law. That is a low threshold.

7. The savings provision retrospectively validates earlier transfers. Schedule 1 clause 1 provides that section 7, as amended, extends to transfers that occurred before the amending Act commenced. This means that if a transfer occurred in the period between the original Act and the amendment, it is now validated. Any objection based on the earlier wording is defeated.

8. No requirement to provide notice to persons whose records are transferred. The Act does not require ASIC or the public office to inform individuals that their privilege has been overridden. A person may not know that their records have been transferred until they appear in an investigation or proceeding.

9. The electronic copy requirement in section 5(2) is mandatory. If the public office has an electronic version, it must provide an electronic copy “as soon as practicable.” This duty is separate from the duty to provide the record itself. Failure to do so could be enforced, though no penalty is specified.

10. The interaction with the Evidence Act 1995 is complex. Section 8(4) gives a court power to inspect a record for admissibility if Part 3.10 of the Evidence Act is not applicable. But Part 3.10 sets out the rules about privilege, including professional confidential relationship privilege and sexual assault communications privilege. The court may need to determine which law applies, and the Act’s deeming provision could lead to circular reasoning.

Compliance obligations under the Act fall on different entities.

For public offices holding records of the James Hardie Special Commission of Inquiry. The primary duty is under section 5. If ASIC makes a request for a record, the office must provide or make it available as soon as practicable. If the office has an electronic version, it must provide an electronic copy. The office cannot refuse on grounds of privilege, confidentiality, or the compulsion under which the record was obtained. The office should also ensure that it retains control of records until ASIC requests them, and upon request, promptly transfer both physical and electronic copies. If ASIC later indicates it no longer wishes to retain a record, the office must take control back if ASIC requests (section 6(2)). To comply, the office should designate a liaison officer familiar with the Act, maintain an inventory of Inquiry records, and establish procedures for identifying and transferring records requested. The office should also consider that the Act overrides the State Records Act 1998 section 21, so normal disposal authorisations do not apply.

For ASIC. ASIC must exercise its powers under sections 4 and 6 within the scope of its functions and powers under Commonwealth law. When requesting records, it should specify the records clearly. When giving records to the ACCC or other persons, it must consider the purpose appropriate in relation to its functions or powers. ASIC should document the basis for each decision to give records to a third party, including any foreign regulator under section 127(4) of the ASIC Act. ASIC must also comply with any Commonwealth laws governing use and disclosure of information, except as overridden by this Act. If ASIC no longer wishes to retain a record, it should request the public office to take control back.

For facilitated parties (Foundation, Amaca, Amaba, or prescribed persons). To benefit from Part 3, a facilitated party must first advise the Attorney General of its intention to seek to adduce evidence of an answer made or record produced by a witness to the Inquiry in proposed civil proceedings. The Attorney General will then consider whether to make an order declaring that Part 3 applies. The party should ensure it has a copy of the Gazette order and that the order covers the specific proceedings. The party may retain and use records already in its possession (section 12). When seeking to adduce evidence, the party should be careful not to adduce evidence that would incriminate a natural person, because section 13(3) prohibits that. The party should also note that section 13(4) limits admissibility: evidence is not admissible under section 13(1) if it would not be admissible apart from section 23(2) of the Special Commissions of Inquiry Act and this section. That is a circular provision. It essentially means that the Act only removes the barrier created by section 23(2); it does not make admissible evidence that would be excluded by other rules (e.g., hearsay, opinion, or relevance). Therefore, the party must still satisfy the ordinary rules of evidence, including the Evidence Act 1995, for admissibility beyond just the Section 23 barrier.

For legal practitioners and witnesses. If a client provided evidence to the Inquiry, the practitioner should advise that privilege has been overridden and that such evidence could be used in civil proceedings designated by the Attorney General. The only protection for natural persons is against self-incrimination in those proceedings. No protection exists against use by ASIC or the ACCC in investigations. Practitioners should review the consent and waiver provisions of any earlier engagement.

For the Attorney General. Before making an order under section 11, the Attorney General must be advised by a facilitated party and must consider it appropriate in the public interest. The order must be published in the Gazette. The Attorney General should also consider the interaction with section 14 regarding the Commissioner’s direction. The order should specify the civil proceedings clearly to avoid ambiguity. The Attorney General should be aware that the order cannot be challenged, but should still act within power to avoid potential constitutional issues.