Should government ministers have been told earlier by officials about the planned Christchurch terror attack movie They are Us?  Peter Dunne says it was a sitter for notification under the ‘no surprises’ policy.

The Government will have breathed a huge sigh of relief at the announcement that “They are Us” the proposed film about the Christchurch Mosque slayings, and the Prime Minister’s immediate response to those events, has been “postponed.” Although the project was nothing to do with the Government, it was always going to be affected by the consequences of it.

Already, Islamic and other community groups had been calling on the government to stop the production because the events it would portray were still too recent and raw in the public memory. Some were even arguing that the tragedy should never be portrayed on film in this way. And when parts of the script were leaked revealing, amongst other things, that former Deputy Prime Minister Winston Peters was to be portrayed as a kindly old man prone to spouting pearls of wisdom in Te Reo, it became clear just how much licence the producers were proposing to take with the facts in the pursuit of a good story. Had the production proceeded along these lines, and the degree of public concern remained, the government was likely to find itself in an increasingly difficult, not to mention powerless, position to deal with the reaction.

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While ministers had clearly been genuinely blindsided by the earlier announcement that such a film was being planned, it has subsequently become clear from material released under the Official Information Act that the Film Commission, a Crown Entity reporting to the Minister of Arts, Culture and Heritage, had been aware of the project from its outset, just a few weeks after the March 2019 tragedy. This, in turn, raises the vexed question of the “no surprises” policy, and whether in fact Ministers should have been made aware of the project at a much earlier date.

According to the Cabinet Manual, “… officials should be guided by the ‘no surprises’ principle. As a general rule, they should inform Ministers promptly of matters of significance within their portfolio responsibilities, particularly where these matters may be controversial or may become the subject of public debate.”

This principle came into sharp focus in 2017 when details about New Zealand superannuation over-payments to Winston Peters were released publicly. It was argued these had been available to the relevant Ministers at the time under the “no surprises” policy. In retrospect, the release of this information to Ministers in this way was not justified. While it could have been argued that the superannuation over-payments were “controversial” or “may become the subject of public debate”, it is doubtful that they amounted a matter “of significance” within the then minister’s portfolio responsibilities.

Moreover, the release of an individual’s personal information in this way, regardless of the standing of that person in the community, looked likely to be in breach of some of the principles of the Privacy Act regarding the security of personal information held by government agencies. In short, Peters’ outrage that his personal details were released just a few months before an election, for clearly political purposes, was understandable and justified.

The Peters incident renewed the debate about the line between officials’ role as providers of free and frank advice to Ministers and becoming more drawn into day-today political considerations. They have been given fresh impetus by the “They are Us” controversy.

Applying the Cabinet Manual provisions to the “They are Us” proposal provides, on the face of it at least, a far clearer answer than the Peters’ case. Given its scale, the significance of the event within New Zealand’s history, and the still raw nature of the many memories of it, it certainly meets the test of being a matter of significance, coming within the wide responsibilities of the Minister of Arts, Culture and Heritage. And there is no doubt that the matters the film proposed to traverse were “controversial” and “the subject of public debate”. Nor are there Privacy Act considerations since the matters being portrayed were already largely in the public domain or were matters of artistic licence and interpretation.

It could be argued that because of the huge commercial sensitivity involved and general principles regarding freedom of expression, it would have been inappropriate for the Film Commission to have advised Ministers from the outset about the film proposal. While a Crown Entity, the Commission has an understandable autonomy in its day-to-day operations, including its discussions with potential filmmakers about their intentions and plans and how it might assist. Indeed, the last thing one would want is a situation where Ministers were involved in these negotiations or discussions about what films were and were not desirable. (As the examples of the various Lord of the Rings films show, the direct involvement of Ministers in film industry matters can be extremely awkward.)

However, the “They are Us” situation is not that clear-cut. In its earlier guidance to departmental chief executives the former State Services Commission noted that “… advising a Minister of a matter in accordance with the ‘no surprises’ principle does not in itself indicate a lack of independence. The ‘no surprises’ principle applies to all matters within a Minister’s portfolio responsibilities. Including functions or powers that officials must exercise independently of the Minister”.

In other words, while Ministers do not control every particular activity within their portfolio responsibilities, they are entitled to a reasonable expectation that they will be informed about matters likely to come within the scope of the “no surprises” principles in a timely way. In effect, what is contemplated is more an early warning system for Ministers of controversial or sensitive matters likely to arise in their portfolio areas.

There should be no suggestion that had the government been informed earlier by the Film Commission of the “They are Us” plan it would have been better able to stop it proceeding. That is not the point – choosing which films are made and which are not, is not the responsibility of a democratically elected government. But, had the government been informed at an earlier stage, rather than being so clearly caught on the hop by a media announcement the way it was, it would have been in a much stronger position to work with those most likely to be affected by the film. In turn, it would have been better able to counsel the Film Commission and the producers about engaging with those most directly affected and involved to ensure the production of a film that was both historically accurate and sensitive.

Beyond the particular issue of the “They are Us” film, this incident should serve as a timely reminder to all government agencies, especially those that exercise a large measure of statutory autonomy, that the “no surprises” principle set out in the Cabinet Manual, perhaps better described as “early warning” applies to them. Ministers have a right to know what is going on, even if they cannot do much about it. Forewarned still remains forearmed.

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