Introduced in September this year, the Inquiries Act 2014 formally establishes three tiers of government inquiry in Victoria. The Act carries new implications for records received and created by inquiries, including a change in the agency responsible for dealing with Cabinet records. Perhaps though, what is most interesting about the regime is that it permits the handing over of Cabinet records (which are ordinarily closed from public access for a minimum 30 year period) to an inquiry; an issue that received much attention at a federal level earlier this year during the Royal Commission into the Home Insulation Program.
Production of documents
Royal Commissions and Boards of Inquiry can call upon agencies to produce documents, even if other legislation prohibits the production of a document/s. The only exception is where another Act specially excludes the production of documents to the inquiry, or where this is prescribed by regulations. This means that:
- Public records which are closed under sections 9, 10 &10AA of the Public Records Act 1973 would still be available for such inquiries;
- Cabinet documents are also not excluded from call up provisions. The Freedom of Information Act 1982, under which cabinet documents are classed as exempt documents, specifically does not apply to documents in the custody of an agency (or the inquiry body) during the life of an inquiry.
The Act comes in the wake of the decision in early 2014 by Attorney-General George Brandis to release Cabinet documents of the former Rudd Government during the Royal Commission into the Home Insulation Program, which generated controversy in some political and legal quarters. The debate centered on whether the release of the documents set a precedent for publication of Cabinet documents before their set release date, and the possible consequences of this for free and open discussion in Cabinet. These questions have yet to be raised in the context of an inquiry body in Victoria.
Records of inquiries
The Act provides that when a Royal Commission, Board of Inquiry or Formal Review has wound up, all its records are to be transferred to the Department of Premier and Cabinet as the responsible public office. That is unless the Premier, by legislative instrument, determines that they are to be transferred to another public office. Permanent value records must then be transferred to Public Record Office Victoria as soon as practicable.
Previously, the Department of Justice has been the primary responsible agency, although at times other Departments have been responsible for the records (for example Department of Treasury and Finance).
The new arrangements under the Act will apply to all future Victorian government inquiries.
Image: Front page of the Royal Commission into the Failure of West Gate Bridge, supplied by Public Record Office Victoria.