Disposal Moratorium on Records Relevant to the Royal Commission

Contents

Introduction

On 28 March 2019 the Chief Archivist issued a General Notice (PDF 73 KB) under Section 20 of the Public Records Act 2005 (the Act) to implement a moratorium on the disposal of any records relevant to the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions Te Kōmihana Karauna mō ngā Tūkino o Mua ki te Hunga i Tiakina e te Kāwanatanga i Tiakina hoki e ngā Whare o te Whakapono as set out in its Terms of Reference.

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Background

The Royal Commission was established by the Government on 1 February 2018 with Sir Anand Satyanand appointed Chair and the first Commissioners were appointed in November 2018. The Royal Commission has powers under the Inquiries Act 2013 to require any person to produce documents or provide information to the Inquiry.

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Purpose

The purpose of the Chief Archivist’s General Notice is to put in place a disposal moratorium that covers all records held by public offices which may be relevant to the Royal Commission’s inquiry.

The disposal moratorium is necessary to ensure that relevant records are protected from destruction and available for the purposes of the Royal Commission and reinforces the Government’s expectations of transparency, accountability, and co-operation from public offices.

The disposal moratorium affects existing general and agency-specific disposal authorisations issued under the Act and it supports the work of the Royal Commission.

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What is a Royal commission?

The law relating to inquiries was reformed by the Inquiries Act 2013, this Act supersedes the Commissions of Inquiry Act 1908. There are three types of inquiries specified in the Inquiries Act 2013: royal commission, public inquiry and government inquiry.

A Royal commission is the most serious response to an issue available to the New Zealand Government. It investigates matters of great importance and difficulty. A Royal commission is engaged in fact-finding and preventing future recurrences, investigating why the situation occurred and recommends policy or legislation change to prevent it happening again.

Following a decision to establish an inquiry, a Royal commission is appointed by the Governor-General. An inquiry presents its final report to the Governor-General. This final report must then be tabled in Parliament.

The Government establishes Terms of Reference, which sets out what subjects are to be investigated. However, a Royal commission is independent from the Government and reports to the Governor-General.

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What powers does a Royal commission have? 

A Royal commission has powers to receive any evidence that may assist it, to require any person or body (including a Government agency) to produce documents or other information, and to summons witnesses to give evidence.

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Why has the Chief Archivist implemented this disposal moratorium? 

Given the scope and importance of the Royal Commission’s Terms of Reference, the Chief Archivist wants to provide public offices with clear and unambiguous direction as to what is expected of them with regards to the information requirements of the Royal Commission. The Chief Archivist also wants to provide the public with confidence that the integrity of the Royal Commission and its work are being safeguarded.

The disposal moratorium supports the work of the Royal Commission and reinforces the Government’s expectations of agency transparency, accountability and co-operation.

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What records are in scope? 

The disposal moratorium applies to all public records, as defined by the Act,

“…any record or class of records, in any form, in whole, or in part, created or received by a public office in the conduct of its affairs“ 

which may be relevant to the Royal Commission. The Terms of Reference for the Royal Commission are broad in scope and this is reflected in the disposal moratorium’s coverage.

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Does the disposal moratorium cover local government?

No. Section 20 of the Act only applies to public records and not local authority records. However, the Chief Archivist will be seeking to provide local government with further guidance on this issue. The Act has a specific regime for managing local authority records.

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Does the disposal moratorium cover non-governmental organisations (NGOs) or faith-based institutions? 

Not directly, although any records relating to work NGOs have carried out on behalf of government agencies must be covered.

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Does the disposal moratorium include State-Owned Enterprises (SOEs)? 

Yes – as stated in section 4 of the Act, all state enterprises as defined in section 2 of the State-Owned Enterprises Act 1986 are public offices.

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How long will the disposal moratorium be in place? 

The disposal moratorium has been issued without a fixed end date. It will remain in force until the Chief Archivist deems that it is no longer required, and is intended to cover the life span of the Royal Commission.

The Royal Commission is expected to provide the Governor-General and/or appropriate Minister (see clause 35 – 39 of the Terms of Reference) with an interim report in 2020, and the final report in 2023.

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Why is disposal part of recordkeeping practice?

Any large organisation will generate a huge amount of information and records as part of their business as usual programmes and it is not practical or desirable to retain it all. 

A properly managed disposal programme, which includes the regular destruction of records that do not need to be retained long term is standard practice and allows agencies to efficiently maintain business-critical records in a state that is both discoverable and readily accessible when it is required.

The proper disposal of records by public offices is currently managed through the provisions of the Act. Under this legislation, the Chief Archivist issues an authority to dispose where it is considered appropriate. Destruction of any kind must not be carried out without authorisation.

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Will this action impact on my ability to access my own records?

No. Members of the public can continue to request their own records by approaching the relevant government agency.

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Further information

General Notice Revoking Authority to Dispose of Public Records relevant to the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Te Kōmihana Karauna mō ngā Tūkino o Mua ki te Hunga i Tiakina e te Kāwanatanga i Tiakina hoki e ngā Whare o te Whakapono (PDF 71 KB)

For further information for information managers and public offices.

For further information on the work of the Royal Commission of Inquiry.

For further information on Archives New Zealand and its involvement with the Royal Commission.

If you have any questions or need clarification, please contact Archives New Zealand via rkadvice@dia.govt.nz 

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