Disposal moratorium on Royal Commission records
On 28 March 2019 the Chief Archivist issued a General Notice (PDF 75 KB) under Section 20 of the Public Records Act 2005 (PRA) to put in place 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.
The Royal Commission was established by the New Zealand Government on 1 February 2018 with Sir Anand Satyanand appointed as Chair. The first commissioners were appointed in November 2018. The Royal Commission has power under the Inquiries Act 2013 to require anyone to produce documents or information to the Inquiry.
What is a disposal moratorium?
A moratorium is a legally authorised suspension of actions. In this case the moratorium is on the disposal of public records that may be of interest to the Royal Commission of Inquiry. This means that no disposal actions may be applied to public records that may be of interest to the Inquiry while the moratorium is in place.
What is the purpose of a moratorium?
The General Notice (PDF 75 KB) put in place a disposal moratorium that covers all records held by public offices that may be relevant to the Royal Commission’s inquiry.
The moratorium is to ensure that relevant records are protected from destruction and are available to the Royal Commission. It reinforces the Government’s expectations of transparency, accountability and co-operation from public offices.
The moratorium affects existing general and agency specific disposal authorisations that have been issued under the PRA.
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:
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 commissions purpose is fact-finding and preventing future recurrences. They investigate why the situation occurred and recommend policy or legislation changes to prevent it from 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 shared in Parliament.
The Government establishes the 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.
What powers does the Royal Commission have?
The Royal Commission have powers to receive any evidence that may assist it. It may require any person or body including a government agency to produce documents or other information and to summon witnesses to give evidence.
Why has the Chief Archivist implemented this disposal moratorium?
Due to the important scope of the Royal Commission’s Terms of Reference, the Chief Archivist wants to provide public offices with clear direction. This direction relates to the expectations related to the information requirements of the Royal Commission. This will also provide the public with confidence that the integrity of the Royal Commission and its work are being safeguarded.
What records are in scope?
The disposal moratorium applies to all public records, as defined by the PRA,
“…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 coverage.
Does the disposal moratorium cover local government?
Section 20 of the PRA 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 PRA has a specific regime for managing local authority records.
Does the disposal moratorium cover non-governmental organisations or faith-based institutions?
Not directly. But any records relating to work non-government organisations have carried out on behalf of government agencies must be covered.
Does the disposal moratorium include State Owned Enterprises?
Yes. As stated in section 4 of the PRA, all state enterprises as defined in section 2 of the State Owned Enterprises Act 1986 are public offices.
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 decides that it is no longer required. It is intended to cover the lifespan of the Royal Commission.
The Royal Commission is expected to provide the Governor General and or appropriate Minister as defined in clause 35 – 39 of the Terms of Reference with an interim report in 2020, and the final report in 2023.
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 keep it all.
A properly managed disposal programme includes the regular destruction of records that do not need to be kept long term is standard practice. It allows agencies to efficiently maintain business critical records in a state that is easy to find and readily accessible.
The legal process to dispose of records by public offices is mandated by the PRA. Under this legislation the Chief Archivist issues an authority to dispose where it is appropriate. Destruction of any kind must not be carried out without authorisation.
Will this action impact on my ability to access my own records?
Members of the public can continue to request their own records by approaching the relevant government agency.
For information around your organisation’s disposal authorisation or the impact of this inquiry on your organisation’s disposal authorisation please contact us.