The hunt for answers
Two months after the awful events of March 15 left 51 people dead, a Royal Commission of Inquiry is beginning to seek out evidence showing how the attack happened and whether it could have been stopped. David Fisher reports
The Royal Commission of Inquiry into the Christchurch attacks start next Monday — can we all go?
There are no scheduled public hearings planned at this stage. The commission is currently considering whether it will hold one or more public meetings to allow it to hear the experiences and views of the public.
Why aren’t the hearings in public?
There are a few reasons. The first is to make sure the fair-trial rights of the alleged shooter aren’t harmed. It would be difficult for the trial to proceed if an alternative forum was hearing testimony about his background through to what he allegedly did leading up to the attack.
Other reasons include the sensitivity of much of the information to be collected. If the inquiry seeks to find out if he slipped through the cracks, then providing a road map to others isn’t a positive outcome. Also, the inquiry has to serve the public good, so information or material which could be used by others in adverse ways won’t get a platform.
So, it’s a secret inquiry?
Well, it’s not public anyway. Monthly updates will be posted to its website, and eventually the report will be made public. Even then, there are likely to be two versions — one classified for those with security clearance, and another for public consumption.
How does a Royal Commission of Inquiry work?
It is the most powerful way the Government can seek answers to a question. It is overseen by two inquiry “members” who are supported by “officers”, the legal and administrative staff hired to help with the workload. It has wide-ranging powers and can order parties to produce documents or compel attendance at a hearing or interview.
Its concluding report is presented to the Governor-General. Recent such inquiries include ones into the Pike River disaster and the 2011 Christchurch earthquake damage.
Where is the inquiry based?
The inquiry will have two offices. One will be in Christchurch, the home of the community most directly affected by the attacks. The other office will be in Wellington, where the state-sector agencies are based. It expects to move about as needed.
Who is running the inquiry?
Supreme Court Justice Sir William Young was the first member of the inquiry announced about a month ago. Justice Young’s background is Christchurch — his high school, university and first law job were in the city, and it was where he was appointed to the judiciary.
The second person, Jacqui Caine, was announced this week. She trained as a lawyer but became a career diplomat, most recently as New Zealand’s ambassador to Chile, Colombia, Peru, Ecuador and Bolivia between 2015 and 2018. She has worked for Te Ru¯ nanga o Nga¯ i Tahu since February this year.
Who is collecting the evidence?
Documentary evidence will be collected and sorted by staff then made available to the members. Interview subjects will meet with and speak to the members, or delegated staff, with the evidence transcribed.
Who is being spoken to?
A number of state agencies have already been approached. Expect to see extensive evidence produced from police, who were apparently contacted about the gun club and who oversaw the issue of a firearms licence to the alleged killer.
The inquiry will also speak to the Government Communications and Security Bureau and NZ Security Intelligence Service. Information from the intelligence agencies will be critical, but will be jealously guarded to mask any hint of how they operate.
There is also a Muslim Community Reference Group being established to ensure the community has the best pathway to engage with the inquiry, and vice versa.
Other groups or communities who feel at risk can also seek meetings with the inquiry.
What will be investigated?
In short, the inquiry seeks to answer the question of how the massacre happened and whether it could happen again. It will ask what state agencies knew of Brenton Tarrant’s activities before March 15, 2019, what they did with that knowledge and what they could or should have done.
It will also ask how to stop such an attack happening again, which means studying Tarrant’s life in Australia and NZ, his travels, how he got his gun licence and the weapons he used, what his activities on social media were and who he was connected to or possibly influenced by.
What sort of things might it study?
One issue raised after the attacks was whether our intelligence priorities had focused too much on threats from Islamic terrorist groups and not on the rising threat of the far-right.
The inquiry seeks whether information collected wasn’t used but also whether information existed and was never collected or shared between agencies in a way which could have triggered an alert.
What can’t it investigate?
The questioning stops at the point the alleged killer opened fire. It is also unable to probe guilt or innocence.
How long does it go on for?
The findings must be presented by December 10.
The Christchurch Call summit in Paris tomorrow will look at how to make tech companies more responsible for the content they host.
But whether it will have any teeth will be a key issue, given it will be a voluntary framework.
The global reach of social media platforms makes it difficult to pin down the legal jurisdictions that govern them.
Someone in New Zealand could post something that might be called violent terrorist content, the type of content that the Christchurch Call in Paris is specifically
addressing. That content might then be shared, downloaded and then uploaded to different platforms by users in different countries. Which law then applies?
Facebook users were reportedly under Irish law, given Facebook’s Irish subsidiary. But when tougher privacy rules came into effect in Europe last year, Facebook tweaked its terms and conditions so that users outside the US, Canada and the EU would be governed by California law.
New Zealand Privacy Commissioner John Edwards has challenged this, saying Facebook in New Zealand should be subject to New Zealand privacy law.
And he has added that Facebook cannot be trusted to self-regulate, calling Facebook morally bankrupt.
The confusion over jurisdiction is partly why Prime Minister Jacinda Ardern is seeking a global solution, though global regulation — which Facebook boss Mark
Zuckerberg has called for — is not the aim of the Paris summit.
As Ardern has pointed out, there is no such thing as the international court for social media, and establishing one would demand years of work, if it were even possible to get enough broad agreement to
A duty of care
The Christchurch Call is expected to commit governments that sign on to look at adopting and enforcing laws that ban violent content.
Several countries have moved to establish a duty of care, or something similar, for social media platforms in those countries, making them liable for the content they host.
Following March 15, Australia passed a law aimed at removing the most violent online content. Failure to do so would be punishable by three years’ jail and a fine up to A$10.5 million ($11.1m), or 10 per cent of the tech company’s annual turnover.
The UK is considering measures that would hold the top executives of social media companies liable for failing to police their platforms.
France has proposed laws that would appoint a government regulator to oversee social media platforms, and punish them if they host hate speech and violent content.
Under German law, online content hosts have one hour to take down “manifestly unlawful” posts or face a fine up to €50 million ($85m).
One hour is also the timeframe being considered by the European Commission. Failure to do so would mean tech companies could face a fine of 4 per cent of global turnover for the previous year.
The commission already has a voluntary code of conduct to combat hate speech, which Facebook, Twitter, YouTube and Microsoft have signed up to.
US law does not impose a duty of care and, perhaps crucially, the US is yet to confirm whether it will be represented in Paris despite New Zealand efforts to include it.
No duty of care in NZ
New Zealand is similar to the US in that the legal framework allows social media platforms to escape liability for the content they host.
New Zealand laws make it illegal to incite violence or racial disharmony, or subject someone to unlawful discrimination.
But there was a gap in the law for digital media, which was filled by the 2015 Harmful Digital Communications Act (HDCA).
It addresses digital content including social media, texts, and email, but is more about online bullying and harassment rather than terrorist content.
The escape clause in the HDCA is the “safe harbour” provision that gives online content hosts up to 96 hours to act — a timeframe seen to balance the need for a free and open internet.
Under the provision, a person can lay a complaint to Netsafe about material with an online content host, and the host then has 48 hours to contact the material’s author, who then has 48 hours to respond.
Social media platforms that follow this process cannot be held civilly or criminally liable. Even if they don’t follow the process, liability may still fall on the material’s author.
Offences are punishable by up to two years’ jail, or a maximum fine of $50,000 for individuals or $200,000 for companies — far more lenient than penalties in Germany or Australia for terrorist content.
Internet NZ chief executive Jordan Carter told the Herald that Internet NZ did not have a position yet about whether New Zealand needed a specific law about online terrorist content, but he was personally open to the idea.
Edwards supports the idea, saying it was time for social media platforms to take more responsibility for the content they host.
A paper called Anti-social
Media, released by the Helen Clark Foundation, said that the legal framework on digital harm is fragmented and proposed a duty of care with substantial penalties to encourage compliance.
The Government is yet to consider the issue because the focus has been on Paris.
Because the Christchurch Call will be a voluntary framework, it invites a cynical view about whether it would change anything, especially in light of the scandals that have exposed Facebook’s apparent inability to police itself properly.
Ardern would argue that the call would at least improve the status quo, and that in itself makes it worthwhile.