Published: 26 November 2020

 

Introduction

1

On 26 November 2020, the Royal Commission into the Terrorist Attack on Christchurch Mosques on 15 March 2019 (the Royal Commission) will present its report to the Governor-General.

2

The purpose of this Minute is to:

  1. detail and give reasons for, the Royal Commission’s permanent and time-limited orders under section 15 of the Inquiries Act 2013; and
  2. address how other information held by the Royal Commission, which will not be the subject of section 15 orders, will be dealt with following the completion of the Royal Commission.

3

In this Minute we:

  1. provide an overview of the legislative setting;
  2. address what is meant by “internal deliberations” in section 32 of the Inquiries Act 2013;
  3. discuss the interaction of the Official Information Act 1982 and the Inquiries Act;
  4. summarise previous orders made by the Royal Commission under section 15 of the Inquiries Act;
  5. explain the criteria which apply to the making of orders under section 15 of the Inquiries Act;
  6. explain our understanding of what is meant by evidence and submissions for the purposes of section 15 of the Inquiries Act;
  7. determine whether section 15 orders should be made including in respect of:
    1. the right-wing terrorist’s evidence;1
    2. other evidence and submissions received;
  8. apply section 15 to rulings of the Royal Commission; and
  9. (i) make non-publication orders in relation to the names of some of those who participated in the inquiry.

4

We set out the permanent section 15 orders previously made which are to remain in force in Schedule 1. We then set out new permanent and time-limited orders in Schedule 2.

 

Overview of the legislative setting

5

Section 2(1)(h) and (ha)2 of the Official Information Act provides that “official information”:

(h) does not include evidence given or submissions made to—

(i) a Royal Commission; or

(ii) a commission of inquiry appointed by an Order in Council made under the Commissions of Inquiry Act 1908; or

(iii) a commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specified matter; and

(ha) does not include—

(i) any matter subject to an order under section 15(1)(a) of the Inquiries Act 2013; or

(ii) documents referred to in section 32(2)(b) of the Inquiries Act 2013; …

6

Section 15(1)(a) of the Inquiries Act provides:

15 Power to impose restrictions on access to inquiry

(1) An inquiry may, at any time, make orders to—

(a) forbid publication of—

(i) the whole or any part of any evidence or submissions presented to the inquiry:

(ii) any report or account of the evidence or submissions:

(iii) the name or other particulars likely to lead to the identification of a witness or other person participating in the inquiry (other than counsel):

(iv) any rulings of the inquiry:

7

Section 32 of the Inquiries Act provides:

32 Application of Official Information Act 1982

(1) When an inquiry has reported in accordance with section 12, all documents created by the inquiry or received in the course of the inquiry are, except as set out in subsection (2), official information for the purposes of the Official Information Act 1982.

(2) However, the following are not official information for the purposes of the Official Information Act 1982:

(a) any matter subject to an order under section 15(1)(a):

(b) any documents that relate to the internal deliberations of the inquiry and are—

(i) created by a member of an inquiry in the course of the inquiry; or

(ii) provided to the inquiry by an officer of the inquiry.

8

The Department of Internal Affairs (“Department”) is the relevant department of State responsible for administrative matters relating to the Royal Commission.

9

Although the Inquiries Act in a sense replaced the Commissions of Inquiry Act 1908, the latter Act remains in place for certain purposes, most relevantly because a number of other statutes provide for procedures which incorporate aspects of the Commissions of Inquiry Act. So, it has not been repealed.

10

As will become apparent, there is scope for argument as to the way in which these provisions should be construed and applied in relation to evidence and submissions presented to an inquiry. We will come back to that shortly. Before we do so, we set out our understanding of what is contemplated by the phrase “internal deliberations” in section 32(1) of the Inquiries Act. This is because documents that relate to such deliberations are not official information.

 

What does the phrase “internal deliberations” mean?

11

The phrase “internal deliberations” is not defined in the Inquiries Act. We recognise that it is not for us to determine what documents “relate to [our] internal deliberations”. If an issue arises as to this, it will have to be determined under the Official Information Act. We do, however, have some views which we think it right to record.

12

Section 32(2)(b) of the Inquiries Act uses the wording “any documents that relate to” immediately before the phrase “internal deliberations”. This suggests the section was intended to cover material broader than simply documents that evidence the internal deliberations of the Royal Commission.

13

The need to interpret this phrase broadly is supported by case law in the context of discovery applications for internal deliberative materials produced by bodies other than inquiries.3

14

These cases support the view that there is significant public interest in ensuring deliberative bodies do not have to disclose documents relating to their internal deliberations.  Any records of internal memoranda, draft versions of reports and documents which record the thinking of members of deliberative bodies while reaching decisions will inherently be fragmented and incomplete, and possibly quite misleading in the impression they give of the reasons for decisions. Relatedly, any documents bearing on internal deliberations only reflect the decision-making process at a particular point in time. The release of such documents does not account for the ability to change, refine and develop thinking. More broadly, the release of internal deliberations may jeopardise the exchange of free and frank views that is required within deliberative bodies to reach sound decisions. And, finally, public confidence in the effectiveness of deliberative bodies may be lowered if internal deliberative documents are released.

15

There is no reason in principle to distinguish between the deliberative bodies which were the subject of the cases cited above and the Royal Commission. Indeed, one of the cases (Comalco New Zealand Ltd v Broadcasting Standards Authority) draws an analogy with royal commissions. This is a strong indication that the internal deliberations of the Royal Commission ought to be afforded the same high level of confidentiality as the deliberative bodies referred to in the cases.

16

Accordingly, the phrase “any documents that relate to the internal deliberations of the inquiry” in the Inquiries Act should be interpreted broadly and, in particular, in a way that gives significant weight to the importance of allowing the Royal Commission to deliberate confidentially. The phrase, therefore, covers any documents that directly, or indirectly, relate to the decision-making process of the Royal Commission. It includes, but is not restricted to, documents such as:

  1. Internal correspondence (including emails) between:
    1. members of the inquiry;
    2. officers of the inquiry; and
    3. members and officers of the inquiry.
  2. Correspondence (including emails) between members and/or officers of the Royal Commission and experts engaged by the Royal Commission.
  3. Internal memoranda, including research and analysis.
  4. Notes prepared in relation to (both prior to and following) any meetings or interviews with witnesses, or persons interviewed by the Royal Commission. This includes any correspondence between the Royal Commission and actual or potential interviewees.
  5. Records and notes relating to meetings with the Muslim Community Reference Group, other than those which have been published on the Royal Commission’s website. If, contrary to our view, these do not relate to “internal deliberations”, they are, in any event, dealt with by the orders we make as to evidence and submissions.
  6. File notes taken by the Royal Commission.
  7. Working papers prepared by the Royal Commission.
  8. Legal advice (which is also subject to solicitor-client privilege, in any event).
  9. Internal meeting notes, minutes and action points.
  10. Draft versions of the report, including:
    1. annotations to or comments on such drafts and internal communications; and
    2. draft extracts of the report provided to relevant Public sector agencies through our due diligence process including for fact checking, classification and sensitive information review, seeking consent to the use of quotes, and for natural justice purposes.
  11. Requests for information by the Royal Commission to Public sector agencies, individuals or other organisations. These requests reveal the thinking of the Royal Commission at a particular point in time and therefore are properly characterised as internal deliberations. We also see this material, in any event, as forming part of the evidence given and submissions made to the Royal Commission, as we will explain.

17

It also includes, where applicable, any drafts of the documents listed above.

 

Interaction of the Official Information Act and the Inquiries Act

18

There are a number of types of document which can or might be described as “evidence” and “submissions”. Take the example of evidence produced by a Public sector agency incorporating supporting documents, such as a Cabinet paper or letter, that were not brought into existence for the purposes of the Royal Commission but which were requested by or otherwise provided to the Royal Commission as part of the agency’s evidence. At the conclusion of the Royal Commission, that information will exist in four forms:

  1. the copy of the evidence and supporting documents held in the Royal Commission’s records (“inquiry held documents”);
  2. the replica or duplicate copies of the evidence and supporting documents held by the Public sector agency (“office copies”);
  3. any drafts or other material preparatory to the compilation of the evidence and supporting documents (“preparatory material”); and
  4. the supporting documents held by the Public sector agency which were produced in evidence but which were brought into existence independently, and not for the purposes, of the inquiry (“independently existing documents”).

19

The processes by which evidence and submissions are sought by an inquiry is likely to involve request for particular evidence or perhaps the advancing of propositions (perhaps involving making available draft extracts of the report) for comment or natural justice purposes. We refer to documents relating to such processes as “engagement documents”. Engagement documents which are generated or received by an inquiry will be inquiry held documents.

20

For the purposes of section 2(1)(h) of the Official Information Act, the phrase “evidence given, or submissions made, to” an inquiry obviously includes inquiry held documents which make up the evidence and submissions which it received. In respect of inquiry held documents, section 2(1)(h) is no more than a statement of the obvious as documents held by an extant inquiry have never been official information.4

21

Not so clear is whether the phrase “evidence given, or submissions made, to” an inquiry also includes office copies, preparatory material, independently existing documents or engagement documents which are not inquiry held. If it includes independently existing documents, then documents held by a Public sector agency which were brought into existence otherwise than for the Royal Commission, and are thus official information, might lose their status as official information if produced in evidence.

22

The approach adopted by Ombudsman New Zealand is that section 2(1)(h) of the Official Information Act does not apply to inquiries under the Inquiries Act.5 This is undoubtedly so of inquiries of the kind referred to in section 2(1)(h)(ii). But if it is not applicable to Royal Commissions appointed under the Inquiries Act, additional words need to be read into section 2(1)(h)(i). As well, on the ordinary meaning of the words used, section 2(1)(h)(iii) is arguably applicable to inquiries under the Inquiries Act.

23

The approach which we prefer, and which is broadly consistent in terms of result, although not necessarily the reasoning, with that of Ombudsman New Zealand, is that:

  1. Inquiry held documents of an extant inquiry (whether under the Commissions of Inquiry Act or the Inquiries Act) are not official information. We are inclined to see section 2(1)(h) as simply a statement of that position and thus as not addressing the status of office copies, preparatory material, independent supporting documents or engagement documents (if not inquiry held).
  2. The effect of section 32(1) of the Inquiries Act is that, after we report, inquiry held documents become official information unless the subject of non-publication orders under section 15 of the Inquiries Act.
  3. Office copies, preparatory material, independently existing documents and engagement documents are within the scope of the language of section 15(1)(a)(i) and (ii) of the Inquiries Act. They can thus be the subject of non-publication orders made by the inquiry under section 15(1)(a). Where those documents are held by a Public sector agency, the effect of such orders being made, in conjunction with section 32(1) of the Inquiries Act, is that, after an inquiry reports, office copies, preparatory material, independently existing documents and engagement documents are not official information. That being so, caution should be exercised in the making of non-publication orders in respect of independently existing documents as they were not brought into existence for the purposes of an inquiry.

24

Accordingly, orders under section 15(1)(a)(i) of the Inquiries Act will need to be made in relation to non-publication for the future of evidence or submissions encompassing inquiry held documents, office copies, preparatory material, independently existing documents and engagement documents that the Royal Commission considers should not be made public following its completion.6

25

We also observe:

  1. Permanent orders can be made under section 15(1)(a)(iii) of the Inquiries Act to forbid publication of the name or other particulars likely to lead to the identification of a witness or other person participating in the inquiry. If these orders are made, information which reveals those names or other particulars will not be able to be disclosed under the Official Information Act.
  2. Permanent orders can be made under section 15(1)(a)(iv) of the Inquiries Act to prohibit publication of any rulings made by the Royal Commission. Any rulings which are subject to permanent section 15 orders do not fall within the definition of “official information” in the Official Information Act. All our previous minutes have been published and we have made no other rulings to which section 15(1)(a)(iv) applies except in relation to sensitive and classified information.
  3. Orders may be made on a time-limited basis. Time-limited orders are not precluded by the terms of section 15 of the Inquiries Act. They are consistent with certain provisions of the Public Records Act 2005, and with the right to freedom to seek, receive and impart information in section 14 of the New Zealand Bill of Rights Act 1990.

 

Summary of previous section 15 orders made by the Royal Commission

26

During our inquiry we have issued two minutes containing both permanent and interim section 15 orders.

27

Permanent section 15 orders were made as follows:

  1. In Amended Minute 3 dated 21 August 20197 we permanently prohibited publication of and restricted public access to:
    1. evidence or submissions provided to the Royal Commission by the Department of Prime Minister and Cabinet, the Government Communications Security Bureau, the Ministry of Business, Innovation and Employment, the New Zealand Customs Service, or the New Zealand Security Intelligence Service that is or incorporates foreign partner originated confidential information,8 except where the relevant foreign partner agency consents to publication; and
    2. publication of any evidence or submissions provided to the Royal Commission directly by foreign partner agencies except where the relevant foreign partner agency consents to publication.
  2. In Amended Minute 3 dated 30 August 20199 we prohibited publication of and public access to the names and identifying particulars of New Zealand Security Intelligence Service and Government Communications Security Bureau employees.

28

In Further Amended Minute 2 we also made orders under section 15 on an interim basis prohibiting the publication of and public access to:

  1. evidence and submissions received from certain [Public] sector agencies;10 and
  2. correspondence between the Royal Commission and certain [Public] sector agencies.

29

We also issued more than 300 section 15 orders addressed to particular Public sector agencies, private entities and individuals. These orders were issued typically in the context of either formal interviews conducted by the Royal Commission or our extensive due diligence process (which incorporated our natural justice obligations). Broadly speaking, the purpose of these orders was threefold. First, we wished to ensure that individuals and agencies were unable to collaborate on their responses to our inquiries. Second, we wanted to encourage those interviewed to be free and frank with the Royal Commission (safe in the knowledge that nothing they said to us would be made available to anyone else). Third, we made a commitment that no one person or organisation would see all of our report before the Governor-General. The section 15 orders prevented interviewees and their home agency from collating the extracts we provided to them. These section 15 orders were all made on an interim basis, and expressly subject to further order(s) of the Royal Commission. They were made having particular regard to the considerations provided for in section 15(2)(b)-(f) of the Inquiries Act.

30

With the exception of the permanent orders made in Amended Minute 3 and Further Amended Minute 2 (and some orders relating to the publication and translation of our report), the previous section 15 orders made by the Royal Commission are revoked from the date of this Minute. We say this noting that, in a number of cases, those orders are replaced by permanent orders in this Minute.

 

The criteria we must apply under section 15

31

Before making an order under section 15(1) of the Inquiries Act, the Royal Commission is required to take into account the following criteria:

  1. the benefits of observing the principle of open justice;
  2. the risk of prejudice to public confidence in the proceedings of the inquiry;
  3. the need for the inquiry to ascertain the facts properly;
  4. the extent to which public proceedings may prejudice the security, defence, or economic interests of New Zealand;
  5. the privacy interests of any individual;
  6. whether it would interfere with the administration of justice, including any person’s right to a fair trial, if an order were not made under section 15(1); and
  7. any other countervailing interests.

32

Under section 15(3) of the Inquiries Act, if the instrument that establishes an inquiry restricts any part or aspect of the inquiry from public access, the inquiry must make such orders under section 15(1) as are necessary to give effect to the restrictions. Two clauses of our Terms of Reference are relevant.

33

First, clause 10(4) of our Terms of Reference directs that the Royal Commission’s report “must not disclose sensitive information (as defined in section 202 of the Intelligence and Security Act 2017)”. Although applicable to our report, we see the underlying policy consideration as relevant to our application of section 15 to the evidence and submissions presented to us.

34

Second, clause 10(1) of our Terms of Reference provides:

Subject to the need to report effectively on the matters set out in these terms of reference, the inquiry is directed to exercise its powers and perform its duties and report in such a way as to minimise the possibility that its processes or its report, or any part of it, is used by any individual or group (including the individual who has been charged with offences in relation to the terrorist attack) to promote unlawful activities, or otherwise to damage the public interest.

[Emphasis added.]

35

As we will explain, we see this as material to our application of section 15, particularly in relation to the evidence of the individual.

 

What do we mean by “evidence and submissions”?

36

In discussing the interaction between the Official Information Act and the Inquiries Act, we referred to five categories of documents: inquiry held documents, office copies, preparatory material, independently existing documents and engagement documents. As will be apparent, we regard all categories as within the scope of our powers under section 15(a)(i) and (ii) of the Inquiries Act. Some elaboration of this in relation to inquiry held documents, office copies, preparatory material and engagement documents may be of assistance.

37

Where an inquiry conducts hearings in public and in ways which are similar to how courts hear cases, evidence and submissions will include what is said in public hearings and will, in a practical sense, incorporate the exchanges which occur between the inquiry, the lawyers involved and the parties and witnesses. Where, as with our inquiry, the process has been in private and to a very large extent conducted in writing supplemented by private interviews and hearings, the analogy with court proceedings is not so close.

38

In relation to inquiry held documents, we treat “evidence” as including any documentation provided to the Royal Commission in response to our requests for information in whatever form or mode, including documents supplied by agencies, raw data, data analysis, audio and video recordings, transcripts of interviews, written statements of evidence and our contemporaneous notes recording the contents of interviews.

39

The Royal Commission engaged in a comprehensive due diligence process. One part of that process included natural justice which we decided to apply not only to any proposed adverse findings as required by the Act, but also to any proposed adverse statements. This process included:

  1. telling people and relevant Public sector agencies if we intended to make adverse findings or adverse statements about them;
  2. giving those people and agencies an opportunity to review the information on which the proposed adverse finding or statement was based, and to respond;
  3. checking with people and Public sector agencies facts that were to be relied on in the report;
  4. asking people and agencies to let us have their views on the security classification status of information set out in the draft report; and
  5. seeking consent for the use of quotes.

40

In addition, we told individuals, private entities and Public sector agencies mentioned in the report that they were going to be mentioned.

41

To facilitate these processes, the Royal Commission made extracts of its draft report available on a confidential basis to people and agencies. In conjunction, the Royal Commission issued section 15 orders to prohibit publication of the extracts. The section 15 orders served ancillary purposes too, such as preventing people from coordinating their responses. The section 15 orders in respect of the draft extracts also expressly applied to any submissions and responses made to the Royal Commission in reply. The purpose of doing so was to ensure people and agencies could provide free and frank views on the draft extracts of the report.

42

The Royal Commission received submissions and responses on the draft extracts from people and agencies. Those submissions and responses were considered by the Royal Commission in the preparation of its report and, in some instances, resulted in material changes to the report. And, in respect of a number of submissions and responses, people and agencies provided the Royal Commission with additional evidence in support, some of which contained sensitive or classified information.

43

We see all of the material just referred to and which we received as inquiry held “submissions”.

44

Our approaches to office copies, preparatory material, and engagement documents corresponds to what we have just outlined.

45

In the case of independently existing documents, the orders we make are confined to inquiry held documents. The primary purpose of this is to ensure that documents brought into existence for reasons other than our inquiry should not lose their status as official information by reason of being presented in evidence.

 

Orders in relation to evidence and submissions received

46

In this section we consider the criteria we are required to take into account under section 15(2) of the Inquiries Act and address the making of orders relating to evidence and submissions presented to the Royal Commission. We set out our reasoning and conclusions by reference to the evidence from the individual and other evidence and submissions we received.


Evidence from the individual

47

We interviewed the individual responsible for the terrorist attack on 15 March 2019 in private. The interview took place at Auckland Prison. The individual, and his then lawyers, were made subject to interim non-publication orders under section 15 of the Inquiries Act in respect of the content of the interview.

48

As set out above, section 15(3) of the Act requires the Royal Commission to impose restrictions on any part of the inquiry to give effect to the Terms of Reference. Under clause 10(1) of our Terms of Reference, the Royal Commission is “directed” to exercise its powers so as to minimise the possibility that its processes are used to damage the public interest. Those powers include the power to prohibit publication of evidence, which includes the individual’s interview.

49

Of importance to us in deciding whether to make section 15 orders in relation to this evidence are first, the requirement not to provide a platform for the dissemination of the individual’s views and, second, the possibility that aspects of what the individual told us might be seen by others as advice on how to carry out similar attacks in the future.

50

We have given anxious consideration to whether the principle of open justice and the risk of prejudice to public confidence in the proceedings of the inquiry support publication of the evidence given by the individual. In this regard, we have considered the views of people reported in news media, and by unprompted submission directly to us, that publication would be in the public interest. In particular, we understand why some Public sector agencies, some members of Muslim communities and some private individuals (such as academics) believe a transcript should be released. Some people are frustrated that, by his guilty pleas, the individual avoided a trial at which the reasons for the terrorist attack might have been explored.

51

We will provide the audio recording of our interview with the individual and a classified copy of the transcript to New Zealand Police and the New Zealand Security Intelligence Service in order that they may benefit from improving their knowledge of the extreme right-wing and lone actor terrorists. The New Zealand Police and the New Zealand Security Intelligence Service will be subject to the non-publication order we make.

52

In our view, the audio recording and interview transcript should be subject to a non-publication order because:

  1. The recording and transcript record methods used by the individual to conceal his planning and preparation for the attack; it would be contrary to national security interests for those methods to be disclosed publicly as dissemination of them could enable future attacks.
  2. The recording and transcript contain acknowledgments by the individual in relation to what he acknowledged were “mistakes” in the way he carried out the terrorist attack which might be read by potential terrorists as being in the nature of advice.
  3. The recording and transcript record some of the individual’s motives for the attack as expressed to us; disclosure of those motives and his “reasoning” in respect of them could be used to provide a platform for the dissemination of his views.
  4. The recording and transcript include discussion of aspects of his manifesto, which is an objectionable publication under the Films, Videos, and Publications Classification Act 1993.
  5. Our report sets out in some detail (albeit obfuscated in places) the individual’s planning and preparation for the terrorist attack, without disclosing the matters outlined above. In doing so, our report provides the essence of the information revealed through our interview with the individual, without disclosing matters that would be contrary to the public interest.

 

Other evidence and submissions received

53

There are two considerations which we see as being of primary significance.

54

The first is national security. This applies to a substantial amount of the evidence and submissions we received. We went through an intensive exercise in relation to what we have published in our report which contains everything which we consider should be published. It is simply not practicable to engage in the same sort of exercise in relation to material received which we have not referred to in our report. By way of example we interviewed or took evidence from 84 people in secure compartmented information facilities and received over 35,000 pages of documents classified as “CONFIDENTIAL” or above, a majority of which were “SECRET” and above. As well, a good deal of evidence in relation to the individual relates to the way he set about preparing for the terrorist attack and the operational security measures he took.

55

Full publication of this material would provide a “how to” manual for future terrorists and the more of this material that is provided, the greater the risk that it will be used in this way. Not all of this information has come from New Zealand Police and the New Zealand Security Intelligence Service, and the Department of Internal Affairs is not well-placed to make decisions as to the national security implications of its release.

56

The second, and perhaps more important, consideration is confidentiality. For reasons we have dealt with at length in earlier minutes and in our report, we conducted a private process. Such a process has disadvantages, in terms of transparency and the ability to test arguments and conclusions publicly. It does, however, have the significant advantage that those who engage with the inquiry are not constrained by publicity concerns and can thus be expected to be more open than would be the case with public hearings.

57

When engaging with people we did not undertake to make permanent section 15 orders in relation to what we were told. A careful reading of our procedural minutes and consideration of section 32 of the Inquiries Act would have revealed that orders made in relation to evidence and submissions were only interim in nature and that it was therefore possible that what those people told us would later be subject to disclosure under the Official Information Act. That said, we doubt if many of those we dealt with would have engaged in that sort of intellectual exercise. We told them that our process was private and that we would not publish in our report what they told us without first going back to them. We did this with a view to encouraging candour, which we received. We consider that those who dealt with us on this basis would be surprised if what they told us was later disclosed under the Official Information Act.

58

Some of those who spoke to us confidentially had fears as to their safety. Others were concerned about possible employment or related repercussions if what they told us was released publicly. Unless their confidentiality concerns are met, they will understandably feel let down and, as well, the ability of future inquiries to secure cooperation from participants will be compromised.

59

We accept that wide-ranging non-publication orders should not lightly be made. We have taken into account the matters listed in section 15(2) of the Inquiries Act, and to section 14 of the New Zealand Bill of Rights Act. But not much will be lost by the orders we intend to make being broad. This is for three reasons.

  1. First, to the very large extent to which the evidence provided to us consisted of independently existing documents, the orders we make apply only to the documents we received and not the copies of those documents held by Public sector agencies. For example, the extensive files of New Zealand Police which cover much of the same ground as us in relation to, for instance, the firearms licensing system and the Bruce Rifle Club allegations.
  2. Second, our discussion in the report of the various issues is elaborate. By way of further example, we doubt if there is anything material said to us in relation to the firearms licensing process or the Bruce Rifle Club allegations which is not set out in the report.
  3. Third, and leaving aside what we say in our report, we have already put a large amount of material in the public domain, including regular updates as to whom we met with and hui records in relation to the Muslim Community Reference Group. We have also published supplementary products on What we heard from affected whānau, survivors and witnesses, Lessons from the Muslim Community Reference Group process and our Summary of submissions.

60

As well, such an order safeguards the ability of future inquiries to ascertain facts properly as it ensures inquiries receive the necessary level of cooperation.

61

Accordingly, we make orders prohibiting publication of all evidence and submissions as held by the Royal Commission (including office copies, preparatory material and engagement documents), subject to the following exceptions:

  1. our orders do not include independently existing documents held by Public sector agencies;
  2. our orders in respect of evidence and submissions of individual public sector agency chief executives and current and former Ministers are subject to a time limit of 30 years;11 and
  3. our orders shall not prevent the Human Rights Commission, the Privacy Commissioner, present and former Race Relations Commissioners, Ombudsman New Zealand, and Office of the Controller and Auditor-General from releasing their submissions to the Royal Commission.

62

As to the limit expressed in paragraph [61](a) above, our reasons are:

  1. Particular chief executives have important roles within the national security system and in the course of their exchanges (both in writing and in oral evidence to us) discussed in detail matters of acute national security sensitivity which preclude publication for the foreseeable future. But the significance of these security considerations can be expected to dissipate over time.
  2. Chief executives and former and current Ministers can be assumed to have an expectation that their statements to the Royal Commission would not be the subject of permanent orders without time limit. Historians and others will have a legitimate interest in understanding in due course what those officials and former and current Ministers had to say to a Royal Commission like ours.
  3. Balancing these considerations, we consider that a time-limited order is appropriate.

63

If, after 30 years there are still proper grounds under the Official Information Act to withhold the information in the public interest, those grounds may be relied upon to deny access.

 

Witness name and particulars: non-publication orders under section 15(1)(a)(iii)

64

The Royal Commission orders under section 15(1)(a)(iii) of the Inquiries Act that there must be no publication of the name or any identifying particulars likely to lead to the identification of those to whom we refer in the report as Mr Breidahl’s former partner, Mr Breidahl’s friend, the individual’s gaming friend, the gaming friend’s parent, the former Dunedin Arms Officer, the Firearms Licensing Clerk, the Dunedin Vetting Officer and the Waikato Vetting Officer. All of these people participated in the inquiry.

65

In the case of Mr Breidahl’s former partner and Mr Breidahl’s friend there is no public interest which requires that they be identified. Their roles in what happened are purely incidental.

66

In our report we talk about the role of the two people who acted as referees for the individual’s firearms licence application. We refer to them as gaming friend and gaming friend’s parent. Their conduct, however, is not directly within the scope of our inquiry. Their involvement has been the subject of considerable media speculation. We are concerned for their well-being, including their safety, if their names were to be published. Publication of their names is not necessary for the public to understand what happened.

67

The former Dunedin Arms Officer, the Firearms Licensing Clerk, the Dunedin Vetting Officer and the Waikato Vetting Officer were all involved in the process which resulted in the individual receiving a firearms licence. We have reached conclusions on the firearms licensing system, and the processing of the individual’s firearms licence application, which will become clear on the publication of our report. The report comments on actions taken by each of them in processing his application. These actions have been the subject of considerable media speculation. We are satisfied that each one of them acted in good faith.  We are concerned for their well-being, including their safety, if their names were to be published. Publication of their names is not necessary for the public to understand what happened.

 

Rulings made by the Royal Commission

68

The Royal Commission was required to make rulings on whether information was sensitive information for the purposes of section 202 of the Intelligence and Security Act 2017 or should otherwise not form part of the material referred to in our report. We generally refer to the latter issue as declassification. The processes we followed are described in our report and had a number of elements:

  1. Agency nominees were engaged to review draft report content and identify information that Public sector agencies might consider was sensitive. The nominees were experienced staff and the Royal Commission was confident they could provide considered views as to what information was likely to be sensitive. The Public sector agency nominees were under strict obligations of confidentiality and were subject to section 15 orders so that they could not discuss the content of the report with anyone outside the Royal Commission. In addition, information management procedures were put in place to ensure the Public sector agency nominees could only access the information under the supervision of the Royal Commission. This approach was necessary to prevent Public sector agencies, directly or indirectly, learning about the content of the draft report. The Public sector agency nominees were not involved in later consideration of the Royal Commission’s comments on the report.
  2. Following the Public sector agency nominees’ review, the agency nominees made recommendations to the Royal Commission as to what information:
    1. was likely to be sensitive; and
    2. could be addressed through various sanitisation techniques.
  3. The Royal Commission, where it agreed with the assessment of the Public sector agency nominees, made changes to the report to “sanitise”12 the information.
  4. Where the Royal Commission did not agree with the recommendations of the Public sector agency nominees, their recommendations and an outline of the Royal Commission’s provisional position were sent to the relevant agencies for their comment.
  5. Following receipt of the Public sector agencies’ comments, the Royal Commission agreed with some the suggestions made by the Public sector agencies and, in respect of those comments, made the appropriate changes to the report. However, the Royal Commission did not agree with all of the suggestions made by the Public sector agencies. Where it did not agree, the relevant passages were the subject of a hearing held in private. At the hearing, the Public sector agencies made submissions as to why the passages in question contained sensitive information, with the final decision resting with the Royal Commission. The Royal Commission then sent emails and letters to the Public sector agencies stating its final decision – in some cases agreeing, in some cases not. The relevant agencies accepted (or acquiesced in) the decisions stated.

69

In respect of this process, we make permanent orders under section 15 prohibiting publication of the following items:

  1. our rulings on whether information was or was not sensitive information or could be declassified;
  2. the correspondence including draft extracts of the report, which records our final and/or preliminary rulings on these matters; and
  3. submissions from Public sector agencies as to whether information was or was not sensitive information.

70

The reason for these orders is that the material just referred to involves sensitive information, or discussions of sensitive information, or, even where information is not sensitive, information which was confidential. It would be contrary to our Terms of Reference for sensitive information to be published. Furthermore, the publication of confidential information associated with sensitive information risks disclosing the content or nature of that sensitive information.

 

Concluding comments

71

As will be apparent, the practical effect of section 32 of the Inquiries Act and the orders made above is that the following information held by the Royal Commission cannot be published:

  1. any documents that relate to the internal deliberations of the Royal Commission;
  2. material that was the subject of permanent section 15 orders in Amended Minute 3 and Further Amended Minute 2;
  3. all evidence and submissions received by the Royal Commission, but, in the case of independently existing documents, this does not apply to copies held by Public sector agencies;
  4. the name or any particulars likely to lead to the identification of Mr Breidahl’s former partner, Mr Breidahl’s friend, the individual’s gaming friend, the gaming friend’s parent, the former Dunedin District Arms Officer, the Dunedin Licensing Clerk and the Dunedin and Waikato Vetting Officers who dealt with the individual’s firearms licence application.

72

A very substantial amount of the material provided to the Royal Commission (including independently existing documents) will be subject to the Official Information Act and can be requested from Public sector agencies in accordance with the procedures under that Act. For the reasons explained above, the key question will be whether the information requested was brought into existence independently, and not for the purposes, of the Royal Commission.

73

While the Royal Commission has prohibited publication of the information above, the report, supplementary products and additional documents on the Royal Commission website contain an extensive discussion of the evidence given and submissions made to the Royal Commission. These documents are intended to be the authoritative account of the information relied on. No further disclosure is necessary. Any additional disclosure may result in harm for New Zealand generally, the Government, Public sector agencies, communities, individuals and organisations and could impair the conduct of inquiries in the future.

74

For the avoidance of doubt, there is nothing precluding members of the public, community groups or private entities from publishing their own copies of the submissions they made.

75

The ability to access some material under the Official Information Act and the possibility of releasing submissions, in combination with the publication of the report, supplementary products and additional documents, strike the appropriate balance between the competing underlying interests.

 

Issued under the authority of the Members of the Royal Commission, Sir William Young and Jacqui Caine, on 26 November 2020

 
Schedule 1 – Permanent section 15 orders previously made

1

The previous permanent orders made by the Royal Commission which remain in force
are:

  1. Under section 15(1)(a)(i) of the [Inquiries] Act, prohibiting publication of any evidence or submissions provided to the Royal Commission by the Department of the Prime Minister and Cabinet, the Government Communications Security Bureau, the Ministry of Business, Innovation and Employment, the New Zealand Customs Service or the New Zealand Security Intelligence Service that is or incorporates partner originated confidential information except where the relevant foreign partner agency consents to publication.
  2. Under section 15(1)(a)(i) of the [Inquiries] Act, prohibiting publication of any evidence or submissions provided to the Royal Commission directly by foreign partner agencies except where the relevant foreign partner agency consents to publication.
  3. Under section 15(1)(b) of the [Inquiries] Act, prohibiting public access to any information provided to the Royal Commission:
    1. by the Department of the Prime Minister and Cabinet, the Government Communications Security Bureau, the Ministry of Business, Innovation and Employment, the New Zealand Customs Service or the New Zealand Security Intelligence Service that is or incorporates partner originated confidential information except where the relevant foreign partner agency consents to publication; or
    2. directly by foreign partner agencies.
  4. The orders made in paragraphs [1](a) and [1](c)(i) apply only to:
    1. Information incorporated in material provided to the Royal Commission (including copies and drafts of such material held by a [Public] sector agency) and identified as partner originated confidential information; and
    2. Other formats of that information if supplied by the foreign partner agency to a [Public] sector agency for the purposes of the Royal Commission.
  5. Under section 15(1)(a)(iii) of the [Inquiries] Act, prohibiting publication of the names and identifying particulars of witnesses or other persons participating in the Royal Commission who are current or former employees of, or current or former secondees or contractors to, the New Zealand Security Intelligence Service (NZSIS), the Government Communications Security Bureau (GCSB) and partner foreign intelligence agencies, or anyone connected to such persons. This does not apply to present Directors-General or former Directors (or equivalent) of those agencies.
 
Schedule 2 – Formal orders made in this Minute

1

All orders previously made by the Royal Commission under section 15 of the Inquiries Act 2013 are revoked from the date of this Minute save for:

  1. The orders set out in Schedule 1;
  2. The orders relating to publication and translation of the report (or extracts of it) and supplementary products.

2

The orders referred to in paragraph [1](b) terminate as soon as the report has been presented to the House of Representatives under section 12(3) of the Inquiries Act.

3

Publication of any evidence or submissions, or any report or account of the evidence or submissions, presented to the Royal Commission is permanently prohibited. This includes office copies of evidence or submissions held by Public sector agencies, preparatory material and engagement documents. It does not include independently existing documents provided to the Royal Commission and held by Public sector agencies. This order is subject to the following exceptions and clarifications:

  1. In respect of any evidence or submissions given or presented personally to the Royal Commission by a chief executive or acting chief executive of a Public sector agency or current or former Minister of the Crown, the non-publication order shall expire on 26 November 2050. For the avoidance of doubt, this does not include submissions made on behalf of a Public sector agency which were signed out by the relevant chief executive or acting chief executive.
  2. In the case of the evidence of the individual, the transcript and audio recording are being made available to New Zealand Police and the New Zealand Security Intelligence Service. These agencies may communicate with each other about this information, but not otherwise.
  3. The Human Rights Commission, the Privacy Commissioner, present and former Race Relations Commissioners, Ombudsman New Zealand, and Office of the Controller and Auditor-General may publish office copies of the evidence or submissions they provided to the Royal Commission if they wish to do so; and
  4. Private individuals or organisations may publish their own evidence or submissions to the Royal Commission should they wish to do so.

4

Publication is permanently prohibited of the name or any particulars likely to lead to the identification of persons referred to in the report as:

  1. Mr Breidahl’s former partner;
  2. Mr Breidahl’s friend;
  3. gaming friend;
  4. gaming friend’s parent;
  5. former Dunedin Arms Officer;
  6. Firearms Licensing Clerk;
  7. Dunedin Vetting Officer;
  8. Waikato Vetting Officer.

5

Publication of the Royal Commission’s rulings on sensitive information is permanently prohibited. This includes any correspondence and draft extracts of the report which record the Royal Commission’s final and/or preliminary decisions on these matters; and submissions from Public sector agencies as to whether information was or was not sensitive or classified information.

 

1. We generally refer to the right-wing terrorist in this Minute as “the individual” as this is how he was referred to in our Terms of Reference.

2. We refer to these provisions in this way for ease of reference. More correctly they are paragraphs (h) and (ha) of the definition of “official information” in section 2(1) of the Official Information Act 1982.

3. See, for example, Comalco New Zealand Ltd v Broadcasting Standards Authority [1995] 3 NZLR 469 (HC) at 473-474; ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA) at [21]-[22]; Air New Zealand Ltd v Commerce Commission (No 4) [2004] 3 NZLR 550 (HC) at [32]-[36]; and Commerce Commission v Powerco Ltd CA123/06, 9 November 2006 at [22].

4. See section 2(6) of the Official Information Act.

5. Ombudsman New Zealand Tari o te Kaitiaki Mana Tangata Guide: The OIA and inquiries, August 2020.

6. This is the combined effect of section 32(2) of the Inquiries Act and section 2(1)(ha) of the Official Information Act.

7. Amended Minute 3 was originally issued on 27 June 2019 and amended on 21 August 2019.

8. Partner originated confidential information is our phrase. As set out in Amended Minute 3 it means information originated by a foreign partner agency – that is, an international organisation or the Government of any other country, including any agency of such a Government – and supplied in confidence to the Royal Commission or to the Government of New Zealand on the basis that further dissemination is subject to the consent of the foreign partner agency.

9. Further Amended Minute 2 was originally issued on 17 May 2019, amended on 17 July 2019, and further amended on 30 August 2019.

10. In this Minute, “Public sector agencies” means the 217 organisations listed in the appendix to Ko tō tātou kāinga tēnei: Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019.

11. This does not include submissions made on behalf of Public sector agencies which were signed by chief executives.

12. Removing sensitive information (often by rewording language) from a document so it can be more widely distributed.