Government must reconsider what the Commission cannot do

Government must reconsider what the Commission cannot do

Kris Gledhill

Auckland, May 12, 2019

More than 23,000 people attended the National Memorial Service in Christchurch on March 22, 2019, a week after the massacre (RNZ Picture)

The trial of the man accused of the murders and attempted murders in the Christchurch Mosque attacks is one small but important legal process.

Another one has now started.

A Royal Commission of Inquiry, to be led by the Senior Judge, Justice William Young, and Former diplomat Jacqui Caine will look into the specific circumstances leading up to the shootings on March 15 that left, as of now, 51 people dead.

The Commission will investigate whether police or intelligence services could have done more to prevent the atrocity, but its Terms of Reference do not allow it to look into the role of social media.

Duty to protect life

Coroners exist to investigate the circumstances of a death and to make recommendations designed to reduce the risk of further deaths. However, mass deaths, whether in a disaster or atrocity, may call for a different process. The investigation then needs to have a focus on systematic matters.

The Inquiries Act 2013 refers to three different types of wider Inquiry: a Royal Commission (which is formally a matter of the Royal Prerogative), a public Inquiry (established by the Governor General) and a government Inquiry (established by a Minister).

There is a hierarchy, with Royal Commissions at the top.

Recent examples of incidents that involved significant loss of life and merited a Royal Commission include the Pike River coal mine explosion and the failures of buildings during the Canterbury earthquakes.

Human Rights angle

There is an important International Human Rights dimension.

The International Covenant on Civil and Political Rights (OHCHR) 1966, binding on New Zealand since 1978, obliges the New Zealand government not to take life arbitrarily and to protect life.

This duty to protect is in focus here. The question that requires a Royal Commission is whether officers of the State, most obviously in the Police and Intelligence Services, failed in their duty to protect the victims by preventing the atrocity from occurring in the first place.

Answering this question is part of an implied further duty on the state to investigate possible fault on its part.

As duties are by definition owed to someone, fixing this as part of the right to life reveals that it is owed to the families of the deceased victims, and those whose right to life was put at risk, and their families. They must be at the centre of the investigation.

They have the clearest stake in needing to know whether more could and should have been done to prevent the atrocity.

Focus of the Inquiry

Naturally, the desire of those most directly affected to get to the truth is a powerful tool for ensuring that an investigation is kept on track. The rest of us have an obvious interest as well, because we all want to have any necessary changes made to reduce the risk of similar atrocities occurring. But the personal interest adds to this.

The Terms of Reference for the Royal Commission have been released, and should be interpreted in light of this international human rights obligation. But the place of the victims is not prominent. At most, paragraph 4 refers to the expectation that the Inquiry will “connect with the Muslim community” in its work, and paragraph 16 has a similar reference and a note about appointing a liaison person or persons.

But nothing in the Terms of Reference prevents the families being at the centre of the process, and the statutory power of the Commission to regulate its own process allows it to do what it considers as proper in this regard.

The Scope of the Commission

The scope of the Commission’s investigation is a mixed bag.

In paragraph 7 of the Terms of Reference, which sets the scope of the Inquiry, the first six points are directly about the activities of the accused person. The final three, which relate to state sector agencies, are phrased as sub-points to the activities of the individual. But the investigative duty must focus on the potential failures of state officials to fulfil an obligation. It will be important that this is construed appropriately by the Commission.

Paragraph 8 (relating to findings needed) and paragraph 9 (relating to recommendation to be made) suggest that defaults by state agencies and changes that should be made are central. This is reinforced by the introductory comments, which also have a suitable focus on state agency default and required changes. The problematic paragraph 7 can be interpreted accordingly.

What the Commission will not do

Paragraph 13 of the Terms of Reference makes it clear that the Commission will not investigate arms laws. Separate action has already been taken in changing New Zealand’s gun laws.

Nor will the Commission investigate non-state operators such as media organisations, or the police response once alerted to the atrocity.

These two limitations are unnecessarily narrow.

It may be that the response of the police was incredibly professional and appropriate. If so, that should be recorded. But if more could have been done, the Commission is prohibited from even raising the thought.

As for media platforms, if part of the problem is that governments have failed to regulate the hate-filled corners of the internet, that is part of what we should know in order to protect us from similar acts.

While the government might have been concerned to delay the Commission’s findings, which are due by December 10, 2019 and can be supplemented by interim findings, it would have been possible to create a timeline that required the Commission to conduct an Inquiry in several parts with different dates.

The problematic part of paragraph 13 requires governmental reconsideration.

Kris Gledhill is Professor of Law at Auckland University of Technology (AUT). The above article has been published under Creative Commons Licence.

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