Minute 2: Evidence and Submissions from State Sector Agencies – Orders under Section 15 of the Inquiries Act 2013

First published: 17 May 2019
Amended: 17 July 2019
Further amended: 30 August 2019

Further Amended Minute 2: Evidence and Submissions from State Sector Agencies - Orders under Section 15 of the Inquiries Act 2013¹

A need for confidentiality

1

During the course of its proceedings, the Royal Commission of Inquiry into the Attack on Christchurch Mosques on 15 March 2019 (the Royal Commission) will receive a large amount of information that is:

• classified under the Protective Security Requirements as engaging the security or defence interests of New Zealand or the international relations of the Government of New Zealand and/or held confidentially under arrangements with other countries or international organisations; and/or
• of a kind which, if published, would disclose the operational tradecraft or capability of one or more of the agencies listed in the first schedule to these orders; and/or
• of a kind which, if published, might affect fair trial rights of the person accused of offences relating to 15 March 2019 attacks; and/or
• subject to privacy, confidentiality and natural justice considerations.

2

As set out in this minute, the Terms of Reference for the Royal Commission impose confidentiality requirements in respect of some of this information, The Inquiries Act 2013 (“Act”) and the Terms of Reference also permit the Royal Commission to impose confidentially requirements for some of this information.

3

Having considered the terms of the Act, the Terms of Reference, material that has been supplied to the Royal Commission to date and which the Royal Commission has been told will be supplied to it, the Royal Commission considers it necessary to make orders under section 15(1) of the Act (imposing restrictions on access to the inquiry) that cover national security tradecraft, fair trial rights, privacy, confidentiality and natural justice considerations in relation to evidence and submissions received from State sector agencies named in the attached Schedules. The orders being made, and the reasons for doing so, are set out below.

Orders

4

The orders are as follows:

1. Under section 15(1)(a)(iii) of the 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.
2. Under section 15(1)(a)(i) of the Act, but subject to further order of the Royal Commission, prohibiting publication of all evidence or submissions to the Royal Commission by the State sector agencies referred to in Schedule 1.
3. Under section 15(1)(b) of the Act, but subject to further order of the Royal Commission, that public access shall not be given to any of the material referred to in order 4.b) above or to correspondence passing between the Royal Commission and those State sector agencies referred to in Schedule 1.
4. Under section 15(1)(a)(i) of the Act, but subject to further order of the Royal Commission, prohibiting publication of all evidence or submissions to the Royal Commission by the State sector agencies referred to in Schedule 2.
5. Under section 15(1)(b) of the Act, but subject to further order of the Royal Commission, that public access shall not be given to any of the material referred to in order 4.d) above or to correspondence passing between the Royal Commission and those State sector agencies referred to in Schedule 2.

5

Orders 4.b) and 4.d) are authorised by section 15(1)(a)(i) of the Act. Its application is necessarily confined to “evidence or submissions” presented to the Royal Commission. The Royal Commission interprets that phrase broadly, as including, for instance draft and preparatory material created by those agencies in the course of providing evidence or preparing submissions for the Royal Commission.

6

Orders 4.d) and 4.e) may be varied where a State sector agency identified in Schedule 2 requests and has been granted permission by the Royal Commission to publish, or allow public access to, all or part of the evidence or submissions presented to the Royal Commission.

7

The Orders in 4 above do not:

• preclude the publication by the Royal Commission of progress updates of generic information about those with whom the Royal Commission has met, or themes from those initial meetings, meetings or formal interviews including the names of those it has met with other than names and identifying particulars of persons covered by Order 4.a); or
• prevent the Royal Commission putting the substance of any evidence or submissions received from a State sector agency to any other person; although this is subject to clause 10(2) and (3)(a)(i) and (ii) of the Terms of Reference.

Reasons

Overview of legislative regime

8

Under section 14(1) of the Act, the Royal Commission’s discretion in relation to its processes is subject to anything specified in the Act or in the Terms of Reference and, under section 15(3), it must make orders under section 15(1) to give effect to the Terms of Reference to the extent that they restrict “any part or aspect of the inquiry from public access”.

9

Clauses 10(2) and (3) of the Terms of Reference provide:

(2) The matters the inquiry is charged with investigating directly concern the operational practices of relevant State sector agencies, including intelligence and security agencies, which are and must remain confidential in the public interest in order to ensure public safety, to avoid prejudice to the international relations of the Government of New Zealand and the entrusting of information to the Government of New Zealand on a basis of confidence, and for the maintenance of the law.

(3) Accordingly, the inquiry must, wherever it considers it necessary to preserve such confidentiality, hold the inquiry, or any part of it, in private. The inquiry must also restrict access to inquiry information (including evidence, submissions, rulings, hearing transcripts, and the identity of witnesses or other persons) where it considers such steps are required—

(a) in order to—

(i) protect the security or defence interests of New Zealand or the international relations of the Government of New Zealand:

(ii) protect the confidentiality of information provided to New Zealand on a basis of confidence by any other country or international organisation:

(iii) protect the identity of witnesses or other persons:

(iv) avoid prejudice to the maintenance of the law, including the prevention, investigation, and detection of offences:

(v) ensure that individual fair trial rights are protected:

(vi) ensure that current or future criminal, civil, disciplinary, or other proceedings are not prejudiced; or

(b) for any other reason that the inquiry considers appropriate.

10

Section 15(2) of the Act lists criteria that an inquiry must take into account before making orders under section 15(1). Of these, those provided in sections 15(2)(d) and (f) cover some of the ground dealt with in clause 10(3)(a) of the Terms of Reference. The Royal Commission has taken into account the criteria that might point away from the making of section 15(1) orders, particularly those listed in sections 15(2)(a) and (b) but is of the view that Orders 4.a), 4.b) and 4.c) are necessary to give effect to clause 10(3)(a) of the Terms of Reference.

Prohibiting publication of names

11

Prohibiting publication of the names of those associated with the NZSIS and GCSB (Order 4.a)) is consistent with, and in large measure required by, section 227 of the Intelligence and Security Act 2017. It is also consistent with clause 10(3)(a)(iii) of the Terms of Reference and the usual practice of the courts. Prohibition of the publication of the names of those associated with partner foreign intelligence agencies is also consistent with clause 10(3)(a)(iii) and, as well, required by clause 10(3)(a)(ii).

National security, natural justice, privacy and confidentiality considerations in relation to Schedule 1 State sector agencies

12

The directions given in clauses 10(2) and (3) of the Terms of Reference are expressed in mandatory terms. The Royal Commission, therefore, “must” restrict access to Royal Commission information, where it considers that this is necessary, to:

• protect the security or defence interests of New Zealand, or the international relations of the Government of New Zealand, or the confidentiality of information provided to New Zealand on a basis of confidence by any other country or international organisation (clauses 10(3)(a)(i) and (ii));
• protect the identity of witnesses or other persons (clause 10(3)(a)(iii));
• avoid prejudice to the maintenance of the law, including the prevention, investigation, and detection of offences (clause 10(3)(a)(iv)); and
• ensure that individual fair trial rights are protected (clause 10(3)(a)(v)).

The Royal Commission can also restrict access to inquiry information for any other reason that the inquiry considers appropriate (clause 10(3)(b)).

13

Most of the information covered by Orders 4.b) and 4.c) will be within the scope of clauses 10(3)(a)(i), (ii), (iv) and (v). It is not practicable, in advance, to separate out from the material to be supplied to the Royal Commission information that might be published without detrimental consequences. Interim orders are, therefore, necessary at this time to give effect to the Terms of Reference. As drafted, the orders made above at 4.b) and 4.c) also apply to evidence and submissions from Schedule 1 State agencies that will not give rise to national security considerations. In respect of that type of evidence and submissions sub-clauses 10(3)(a)(i) and (ii) of the Terms of Reference are not engaged. That said, there remains a need to:

• protect fair trial rights under sub-clauses 10(3)(a)(v) and (vi) of the Terms of Reference;
• protect the identity of witnesses or other persons under sub-clause 10(3)(a)(iii) of the Terms of Reference;
• protect private and/or confidential information, for instance, where confidentiality has been requested (sub-clause 10(3)(a)(iii) and 10(3)(b) of the Terms of Reference), and
• protect information that has been received by the Royal Commission, release of which, without it having been put to another person, might breach natural justice requirements that are not covered by fair trial rights (sub-clause 10(3)(b) of the Terms of Reference).

Natural justice, privacy and confidentiality considerations in relation to Schedule 2 State sector agencies

14

Evidence and submissions from State sector agencies set out in Schedule 2 are highly unlikely to implicate national security and, accordingly, sub-clauses 10(3)(a)(i) and (ii) of the Terms of Reference are not likely to be engaged. That said, there remains a need to protect fair trial rights (as provided for in sub-clauses 10(3)(a)(v) and (vi) of the Terms of Reference). As well, such evidence and submissions may touch on considerations of privacy, confidentiality (including where confidentiality has been requested and granted or evidence or submissions have been received under an obligation of confidence (express or implied)), and natural justice considerations as provided for in sub-clauses 10(3)(a)(iii), (iv) and 10(3)(b) of the Terms of Reference. For these reasons, interim orders are appropriate in respect of evidence and submissions from the State sector agencies listed in Schedule 2.

Section 15(2) criteria have been considered

15

Section 15(2) of the Act lists criteria that an inquiry must take into account before making orders under section 15(1). Of these, those provided in sections 15(2)(e) and (g) cover some of the ground dealt with in clause 10(3)(a) and (b) of the Terms of Reference. The Royal Commission has taken into account the criteria that might point away from the making of section 15(1) orders, but is of the view that the interim orders made are necessary to give effect to the Terms of Reference.

Interim nature of the orders

16

Orders 4.b) - 4.e) are subject to review. This is primarily because:

• the requirement to protect fair trial rights is time-limited;
• it may transpire that some of the information covered by these orders may be able to be disclosed consistently with clauses 10(2) and (3) of the Terms of Reference;
• at this stage of the process, the Royal Commission is reluctant to make permanent orders that would displace the operation, after the Royal Commission concludes, of the Official Information Act 1982, as provided for by section 32 of the Act; this particularly in respect of information that was not created for purposes which include participation before the Royal Commission;
• a Schedule 2 State sector agency may assess that the information presented to the Royal Commission does not require continuing suppression and the Royal Commission may allow that agency to publish or grant public access to some or all of that information.

17

The Royal Commission also notes that it will be recommending that as much information as possible will be made publicly available at the conclusion of the Inquiry and after it has reported (subject to any permanent orders under section 15 of the Inquiries Act being made).

Application of the Official Information Act 1982 to the orders in paragraph 4

18

As noted in paragraph 5, the Royal Commission construes “evidence or submissions” as encompassing draft and preparatory material created and held by the State sector agencies set out in Schedules 1 and 2. That said, the orders made do not apply (and thus do not preclude the operation of the Official Information Act 1982) in respect of material held by State sector agencies which was not created for the specific purposes of the Royal Commission.

19

Thus, by way of example, in the case of a Cabinet paper, or letter held by a State sector agency, dated 14 March 2019 or 20 July 2019 a copy of which forms part of the evidence submitted to the Royal Commission:

• The copy which forms part of the evidence presented is covered by the orders;
• Correspondence between the Royal Commission and a State sector agency related to evidence and submissions is covered by the orders; but
• The original copy of the Cabinet paper or letter, as received, and held by the State sector agency, is not covered by the orders and remains subject to the Official Information Act.

Issued under the authority of the Members of the Royal Commission, Sir William Young and Jacqui Caine, on 30 August 2019