The 30-year suppression of evidence and submissions from the inquiry into the March 15 terrorist attack sets an unwelcome precedent, writes former race relations commissioner Joris de Bres.
The final act of the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques was to suppress for 30 years all the evidence it received from state agencies. It was the culmination of a process that was non-transparent from the outset, with commissioners opting for a private, confidential and inquisitorial approach that deprived the victims of the shootings, the Muslim community and the general public of the ability to question and challenge those under investigation.
By the time these records are made publicly available in 2050, it’s highly likely that I will be dead and gone, along with the judge heading the inquiry and many others with an interest in the matter. Having presented their report, the commissioners declared their job done, eschewed public comment, left the house, locked the door and threw away the key. The Official Information Act does not apply, so the suppression is beyond official review.
The decision to conduct proceedings in private and to suppress the evidence was not a government one, it was an initiative of the commissioners. It is true that the terms of reference required that certain information relating to national security and foreign intelligence agencies be kept confidential, that the right of the alleged terrorist to a fair trial be protected, and that the commission was mandated to make decisions in this regard. But the extent of the suppression orders, the privacy and confidentiality of the inquiry and the absence of any public accountability for those under investigation were not prescribed, and, one hopes, not intended.
The commission set out its procedures in its first minute on May 13, 2019, based on the requirements of Section 15 of the Inquiries Act. Although the act sets out circumstances in which it is appropriate to proceed in private, it also requires regard to be had to “(a) the benefits of observing the principle of open justice; and (b) the risk of prejudice to public confidence in the proceedings of the inquiry”.
The commissioners claimed to have taken these into account, but did not specify how, other than to say that by meeting with people and providing monthly updates on their website, they would achieve “a reasonable measure of transparency”. The meetings were, however, designed to elicit information rather than provide it, and the updates generally lacked substance. They also flagged “the possibility of some public fora, if appropriate”, with media present. These never occurred and in any event would not have enabled the public to hold those under investigation to account.
The suppression orders are contained in the second minute, initially issued on May 17, 2019 but substantially expanded on July 17. It was the latter expansion that prompted me to decline to meet the commissioners for reasons explained in an open letter published on The Spinoff (I did, however, make and publish a written submission). The minute suppressed all evidence and submissions from the totality of state sector organisations, not just those being inquired into but all government departments, integrity agencies such as the Human Rights Commission, the Privacy Commissioner and the Ombudsman, state-funded media, universities, polytechs, electricity companies, research institutes and even those, like Predator Free New Zealand 2050, the New Zealand Symphony Orchestra, the New Zealand Artificial Limb Service, and Fish and Game Councils, that exist at the periphery of the public sector. Legitimate suppression of highly security-sensitive information was turned into farce by this absurdly broad restriction.
In making these suppression orders, the commission noted that it would 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)”.
That proved to be an empty promise, since the commission’s final minute, issued at the completion of the report, prohibited publication of all evidence and submissions for a period of 30 years. Only the Human Rights Commission, the privacy commissioner, present and former race relations commissioners, the ombudsman, and the Office of the Controller and Auditor-General were “not prevented” from releasing their submissions if they so chose.
It seems bizarre that the commission should not take the trouble to reduce the restriction to those matters genuinely affecting national security. In their report, they say they put detailed questions to all 217 agencies in the public sector and found that only 10 held information about the terrorist and only six were involved in counter-terrorist activity. Presumably the Symphony Orchestra was not one of these. The vast majority were clearly of no interest to the inquiry, but they were nevertheless included in the final suppression order.
So we are expected to trust that the commission has faithfully represented the outcome of its interviews and the import of the submissions it received, and that it has thoroughly challenged the evidence of those under investigation. They may well have done so, but justice needs not just to be done, but seen to be done, and their report leaves people unsatisfied in this regard. There is a separate summary of the 1,123 submissions received, but the commission chose not to analyse them in terms of demographics. While they acknowledged, after examining best practice in other inquiries, that this is usually done, “they were concerned that seeking from submitters information such as gender, age and ethnicity could create a barrier for people who were worried about their safety”. In their report, the commission made much of the fact that they had received a large number of submissions, but one needs to trawl the minutes of the Muslim Community Reference Group to find that around 800 (70%) of these were about firearms, and mostly as a result of an organised campaign by those opposed to tighter gun controls.
The lack of transparency, the lack of opportunity for the evidence to be tested in public, and its suppression for 30 years, does not mean the commission’s recommendations are without merit. It just represents a missed opportunity for public engagement and public participation, and sets an undesirable precedent.
Ministers are currently attending a series of meetings throughout New Zealand to discuss the commission’s 44 recommendations. The public are being asked to comment without being fully apprised of the basis of the recommendations, or having been able to challenge or independently examine the evidence that led to the findings. Many will remain dissatisfied that the commission chose to operate in secret and went to great lengths to protect the right to natural justice of those being investigated, without giving equal weight to the public’s expectation that justice must be seen to be done. This is particularly so when the findings largely exonerated the agencies involved, while recommending changes for the future.
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