4. The process we followed

4.1 Overview

1

In this chapter we provide an overview of the process we followed. Under the Inquiries Act 2013, a Royal Commission may conduct its inquiry as it considers appropriate, subject to any restrictions in its Terms of Reference or in the Act. As we will explain, our inquiry was conducted in private. Limiting public participation meant we needed to provide transparency in other ways during our inquiry. 

2

The matters that we were investigating directly concerned the operational practices of Public sector agencies, including the methods used by the intelligence and security agencies to gather information. Our Terms of Reference required us to ensure that information we received from relevant Public sector agencies remained confidential, where this was necessary, to protect public safety and the security and defence interests of New Zealand, a requirement that extended to information supplied in confidence from international partners. 

3

We ensured that current and former Public sector employees and contractors (including those who worked for the intelligence and security agencies) could contact us confidentially. We were concerned that, without these arrangements, some may have been deterred from providing us with information for fear of repercussions in their current or future roles within the Public sector.

4

At the same time, we were aware of the significant public interest in our proceedings. Our report had to provide reassurance to the New Zealand public, particularly New Zealand’s Muslim communities, that all appropriate measures are being taken to ensure their safety and protection. Connecting with the public was a necessary part of providing this reassurance.

5

After careful consideration, we reached the view that our Terms of Reference practically required our process to be conducted in private. They directed us to ensure that sensitive information was protected, the operational tradecraft of intelligence and security agencies remained confidential and the fair trial rights of the individual were preserved.⁴ As well, we wanted to protect the privacy of affected whānau, survivors and witnesses of the terrorist attack, and to respect the wishes of some people who would have been concerned about possible repercussions if their names or comments became public. A private process meant that we could address those concerns. 

6

We took steps to achieve a reasonable measure of transparency and, in this way, provide reassurance to the New Zealand public. For example, we undertook broad‑based engagement through meetings with New Zealand communities, including Muslim communities, and provided regular updates on progress through the Royal Commission’s website. In respect of our updates, we published the names of most people we interviewed, procedural minutes, meeting notes from the Muslim Community Reference Group and outlined each stage of our inquiry as we progressed.

7

In relation to gathering information and evidence, we adopted an iterative and inquisitorial process including:

1. engaging with affected whānau, survivors and witnesses;
2. meeting with Muslim communities;
3. meeting with ethnic and religious communities and interest groups;
4. receiving submissions;
5. requesting evidence from Public sector agencies;
6. meeting with local authorities;
7. meeting with the integrity agencies;
8. requesting information from businesses;
9. interviewing Public sector employees, including chief executives of the named Public sector agencies, under oath or affirmation;
10. seeking information from relevant Australian organisations;
11. meeting with and consulting experts;
12. interviewing former and current ministers of the Crown; and
13. interviewing the individual.

8

With the individual’s pleas of guilty on 26 March 2020, there was no longer a need to be concerned about his fair trial rights. But, by that stage, our process was well advanced to the point that we had reached provisional findings and a natural justice process was underway on these findings. Public and adversarial hearings would have been incompatible with the substantial engagement we had already undertaken and sharing of the provisional findings and necessitated a further extension of the reporting deadline. In any event, the ongoing requirement to protect confidentiality in respect of the practices of intelligence and security agencies would have continued to limit the potential scope of public hearings. 

4.2 Engaging with Muslim communities

9

Engaging with affected whānau, survivors and witnesses of the terrorist attack was at the forefront of our thinking. We extended an invitation to affected whānau, survivors and witnesses to meet with us privately, on their own terms, when they were ready to do so. The Royal Commission was established less than a month after the terrorist attack and it was important not to rush people who were still grieving and coming to terms with what had happened. We also wanted to respect religious practices such as the ‘Iddah grieving period, Ramadan, Eid al-Fitr, Dhul Hajjah, Eid al-Adha, Hajj pilgrimage and Muharram. We met with the Imams from Masjid an-Nur and the Linwood Islamic Centre, the Christchurch Muslim Liaison Group, the Linwood Islamic Charitable Trust and the Muslim Association of Canterbury. On occasion, we attended Jumu’ah at the Linwood Islamic Centre and Masjid an-Nur. We were able to speak to all those affected whānau, survivors and witnesses who expressed a wish to talk to us, whether they resided in New Zealand or were overseas. 

10

Many of those closely affected by the terrorist attack invited us into their homes, sharing their grief as well as their hospitality with us. We were deeply humbled and privileged to do so. We were also assisted in these discussions by Aarif Rasheed and his team from JustCommunity, a legal, cultural awareness and advocacy consultancy group, and Deborah Lemon of Navigate Your Way Trust, a service provider helping people find pathways to housing and other services. Together they assisted us to engage with over 130 families affected by the terrorist attack. We are extremely grateful to those who agreed to meet with us. The stories they shared about their experiences before, during and after the terrorist attack gave us valuable insight which has deeply enriched this report.  We hope we have adequately reflected what they told us. Their evidence is reflected throughout this report, and in our companion publication What we heard from affected whānau, survivors and witnesses.

 Read What we heard from affected whānau, survivors and witnesses. 

11

We also met with, and attended events at the invitation of, Muslim organisations including Auckland University Muslim Students’ Association, Auckland University of Technology Muslim Students’ Association, Federation of Islamic Associations of New Zealand, Islamic Ahlulbayt Foundation of New Zealand, Islamic Council of New Zealand, Islamic Women’s Council of New Zealand, Masjid al-Huda/Dunedin Islamic Centre, New Zealand Muslim Association, North Shore Ahlulbayt Centre Hussainiya, Otago Muslim Association, Pakuranga Hussainiya, South Auckland Muslim Association, UMMA Trust and the Working Together Group.

12

At the beginning of our process, and to meet our Terms of Reference, we established a Muslim Community Reference Group made up of 37 members.⁵ This was to ensure that we had access to a diverse range of opinions from Muslim communities, and that people within those communities had access to us. A wide range of nominations went into the mix to determine the make-up of the group, which was designed to be as broadly representative as possible. Criteria for ensuring the right balance included gender, religious perspectives, ethnicity, age, geographical location and the member’s connections to their communities. It was important to us that we built trust with members, so they could have confidence in us. We put much thought and effort into building this relationship. We engaged throughout the inquiry with the Muslim Community Reference Group and met on nine occasions. 

4.3 Community and interest groups

13

We met with, or heard from, many community and interest groups and non-government organisations who held information useful to our inquiries. We met with representatives including from the Dunedin Abrahamic Interfaith Group, the Foundation against Islamophobia and Racism, Purapura Whetu (mental health and social services Christchurch), the Refugee Council of New Zealand, the Religious Communities Leadership Forum and the Religious Diversity Trust Aotearoa. 

14

We also met with representatives from the African Communities Forum, Jewish Council, Migrant Action Trust, Multicultural Council of Wellington, New Zealand Asian Leaders, New Zealand Indian Central Association, Somali Education and Development Trust, Te Rūnanga o Ngāi Tahu, Third Culture Minds: Refugee and Migrant Youth Mental Health Charitable Trust and Transparency International.

4.4 Integrity agencies

15

We met on a number of occasions with the Chief Human Rights Commissioner, the current and some former Race Relations Commissioners and staff of the Human Rights Commission.

16

We also engaged with the Privacy Commissioner, the Chief Ombudsman, the current and a former Auditor-General, the Chief Commissioner of Intelligence Warrants and the current and a former Inspector-General of Intelligence and Security.

4.5 Submissions process

17

In order to reach a broad range of New Zealanders and hear their views, we opened a submissions process from 1 July 2019 to 27 September 2019. The original closing date of 31 July 2019 was extended to accommodate those people who needed more time to prepare their submission.

18

We received 1,168 submissions – 1,123 from individuals (including researchers and academics) and 45 from organisations. The total number of submissions includes submissions that were received verbally and then transcribed. 

19

The insights from the public submissions are woven throughout the chapters of this report and summarised in our companion publication Summary of submissions.

4.6 Public sector agencies

20

We took a comprehensive approach to understand what Public sector agencies knew. We wrote to all 217 agencies in the wider New Zealand Public sector asking for information held about the individual, whether any concerns about safety and security had been raised by iwi/Māori, ethnic or religious communities (including Muslim communities) with agencies, and the role the agency has in New Zealand’s counter-terrorism effort. The vast majority of agencies did not hold any information on the individual, but we have been assisted in our inquiry with other information they provided. We set out the information that agencies held about the individual in Part 6: What Public sector agencies knew about the terrorist.  

 Read Part 6: What Public sector agencies knew about the terrorist.

21

We issued numerous requests for information held by Public sector agencies. In some instances, we went back to agencies and asked for more information.  For example, we received over 15,000 pages of evidence from New Zealand Police for analysis. By the end of our inquiry we had received over 73,500 pages of evidence and submissions.

22

We summonsed current and former chief executives of Public sector agencies and interviewed many other current or former Public sector employees who worked in those agencies. Some of those current or former Public sector employees approached us in confidence. We took evidence from employees from all levels within the Public sector agencies, including front-line staff.

23

Confidentiality orders (made under section 15 of the Inquiries Act 2013) ensured that individuals who appeared before us could be confident that they could give us their free and frank views. These orders also prevented coordination of evidence. We were pleased that individuals were forthcoming in expressing their views even when these differed from the positions of their agencies. From the relevant Public sector agencies themselves, we were looking for their organisation view rather than a system view. 

4.7 Local government

24

We met with the Mayors of Christchurch and Auckland, and councillors and council staff.

4.8 Experts

25

We spoke to many people with expertise in areas material to the inquiry, including experts in ethnic and religious communities.

26

We are particularly grateful for the time made available to us by Lord Hogan-Howe QPM, former Commissioner of the Metropolitan Police Service (Greater London area) from 2011 to 2017, and John McKinnon CNZM QSO, former Chief Executive of the Ministry of Defence from 2006 to 2012 and Director of the External Assessments Bureau from 1995 to 2001. Their perceptive comments and advice helped our thinking.

27

We met with New Zealand’s intelligence and security and law enforcement counterparts, academics and experts in Australia, Norway, the United Kingdom and the United States of America. These meetings supported our understanding of right-wing extremism, lone actor terrorists, the lessons learned by countries that have experienced similar terrorist attacks and the challenges facing other counter-terrorism systems. 

28

We also consulted a range of subject matter experts within New Zealand:

1. Dr Elaine Barrington-Ward, a Senior Medical officer and Clinical Leader in the Endocrinology and Diabetes Department at Wellington Hospital, an expert in steroid and testosterone use.
2. Ben Elley, an expert in radicalisation and the far right.
3. Te Maire Tau, Ūpoko (leader) of Ngāi Tūāhuriri (tribal authority for Christchurch).
4. A New Zealand Police Armourer, who provided advice on firearms-related issues.

29

All of the people referred to in our website updates – and others who requested they not be listed – provided valuable insights and expertise to our inquiry.

4.9 Members of Parliament

30

We interviewed several current and former members of Parliament who have held ministerial portfolio responsibilities in relation to national security and the intelligence and security agencies.

4.10 The individual

31

Before the individual entered pleas of guilty, our engagement with him through his lawyers had been limited and formal in nature, as he was then facing trial. After he had pleaded guilty to all the charges he faced, we approached the individual, through his then lawyers, to see if he was prepared to talk to us.  He was.  Given our obligation to make all reasonable inquiries into the issues on which our Terms of Reference required findings and recommendations, we saw an interview with the individual as appropriate.

32

The individual was (and remains) detained in Auckland Prison. The facilities available for the interview in Auckland Prison were of limited size, with room for only three people other than the individual. He had counsel present. This left space for only the Chair of the Royal Commission and counsel assisting. The interview took place on 24 June 2020.  There was an audio link so the Member of the Royal Commission and officers could join the interview.

33

We did not have the practical ability to compel the individual to talk to us. This was because the penalties under the Inquiries Act for not responding appropriately to a witness summons are inconsequential when compared to the penalties he faced at sentencing. So, his participation was voluntary. The individual did not wish to give his evidence on oath or affirmation. We did not press that issue. 

34

We had reservations about some aspects of what he told us but much of it was plausible. We will refer to his evidence in more detail later in this report, particularly in Part 4: The terrorist.

 Read Part 4: The terrorist

4.11 Our engagement by numbers

35

Between April 2019 and September 2020, we held more than 395 meetings with affected whānau, survivors and witnesses, community organisations and individuals, Public sector agencies, integrity agencies, local government, members of Parliament, experts, academics and international representatives. Many of the Public sector employees interviewed were summonsed to appear and provided their evidence under oath or affirmation. We issued more than 47 summonses to current and former Public sector employees to appear before us. More than 330 section 15 orders were also issued to Public sector agencies and people to ensure the evidence gathering and natural justice process was rigorous.

4.12 Types of evidence received

36

The evidence we received included stories from community members, reports and reviews, Cabinet papers, ministerial briefings, interview transcripts, meeting notes, email records, police statements, audio recordings, financial reconstructions, credit card transactions, medical assessments, social media reports, information relied on by international media outlets, maps, photographs, videos, newspaper clippings, examination of physical evidence, international partner information and telecommunication records.

4.13 Internal deliberations

37

Our internal deliberation process largely ran in parallel with our information and evidence gathering process. It included analysing the evidence, conducting research, preparing internal memoranda, holding workshops within the Royal Commission and pursuing additional lines of inquiry when appropriate.

38

Officers of the Royal Commission were encouraged to offer their individual perspectives on the complex issues that had to be resolved. This robust approach helped to develop and refine our thinking and, ultimately, paved the way to finalising the content of the report.

4.14 Due diligence process

39

We undertook a comprehensive due diligence process with those who had participated in the inquiry. This included:

1. an iterative natural justice process;
2. fact-checking;
3. reviews for sensitive and classified information; and
4. obtaining consent to use quotations.

We discuss these aspects of our process below.

An iterative natural justice process

40

Although we could not make decisions about civil, criminal or disciplinary liability, we could make unfavourable (adverse) findings against people or Public sector agencies. Section 14(2) and (3) of the Inquiries Act states that, if we intended to make findings against a person or agency, we had to make sure that person or agency understood the reasons for the unfavourable finding and had a fair opportunity to respond before we made our final decision. We followed a natural justice process that applied not only to provisional unfavourable findings, but also to any unfavourable statements. This process generally included:

1. telling people and Public sector agencies if we intended to make unfavourable findings or unfavourable statements about them;
2. giving those people and Public sector agencies an opportunity to review the information on which the proposed unfavourable finding or statement was based, and to respond; and
3. telling people, community groups or organisations and Public sector agencies mentioned in the draft report that they were going to be mentioned.

In some instances, changes to our draft report required additional natural justice processes to be carried out. 

Fact-checking

41

As noted above, we received over 73,500 pages of evidence and submissions. This large volume of material meant there was, potentially, scope for factual inaccuracies in our draft report. To ensure we produced a factually accurate report, we requested those whose evidence or submissions had been relied on in the draft report (whether Public sector agencies, community groups, individuals or otherwise) to check the accuracy of parts of the report that were based on their evidence and submissions. No person or organisation received a full copy of the draft report.

42

The fact-checking aspect of our due diligence process was time-consuming. However, undertaking this process means our whole report has been fact-checked by relevant individuals and organisations.

Reviews for sensitive and classified information

43

Our Terms of Reference precluded the disclosure of sensitive information in our report. We have been anxious throughout our inquiry to provide a report that can be published in full without redactions or suppressed sections. Accordingly, as part of our due diligence process, we asked the intelligence and security agencies to identify any sensitive information in the draft report content. 

44

Broadly speaking, sensitive information relates to the operations of the intelligence and security agencies that, if it was released, would prejudice the security, defence, or international relations of New Zealand or would endanger the safety of any person. We undertook a comprehensive process to ensure the report did not contain any sensitive information. That process involved agency nominees reviewing the report for sensitive information and providing us with advice, asking Public sector agencies for their comments on sensitive information issues and holding a hearing to determine any outstanding issues. We decided how the sensitive information issues raised at the hearing should be resolved, including by sanitisation. 

45

Sanitisation requires a restatement of information so as to limit the potential for harm to national security. Very little information required sanitisation. Such sanitisation as has occurred has not altered the substance of what we wanted to say.

46

Our Terms of Reference did not prevent the publication of classified information. Instead, we had discretion to publish such information. We asked Public sector agencies to identify any classified information contained in the draft report during the due diligence process and explain why they thought this should not be published. Some Public sector agencies considered that the report contained classified information that should not be published, at least in the way it was set out in the draft report. 

47

To decide whether we would publish classified information in our report, we followed a broadly similar process to that undertaken in relation to sensitive information. All issues that arose were able to be dealt with by sanitisation or determining that the information could be included as is. The sanitisation processes did not affect the substance of what we wanted to say.

48

A substantial amount of information previously classified as Secret or Top Secret is included in our report.

Obtaining consent to use quotations

49

As noted above, we gathered information and evidence in private. We gave all witnesses, and those who made submissions to us, other than the individual, the assurance that what they provided to us would remain confidential unless they later provided their consent for the material to be disclosed. We considered this essential in order to honour the assurance of confidentiality that we had given to participants.

4.15 Concluding comments

50

We acknowledge that the requirement to proceed in private created some limitations. Ideally, we would have had the opportunity to test evidence and conclusions, which a public process might have provided. For the reasons discussed earlier, that was simply not practical. We have worked to secure the confidence of the Muslim organisations and individuals with whom we have engaged. We have also done our best to test the evidence and our conclusions. As to whether we have been successful, our report must speak for itself.

_{4. For more information on the Royal Commission of Inquiry’s Minutes, see https://christchurchattack.royalcommission.nz.}

_{5. For more information on the Muslim Community Reference Group, see https://christchurchattack.royalcommission.nz.}