At 4.34pm on February 3, 2016, Frazer Barton, who in 2022 would become the president of the Law Society, answered "yes" to an emailed question from Gillian Bremner, then chief executive of the charity Presbyterian Support Otago (PSO), who said later she had been seeking his "informal advice".
The email, innocuously titled "a question for you", was grave. It was about the possible mass destruction of files about the lives of children who had lived in the charity’s residential homes, closed down in 1991.
Ms Bremner asked: "... on balance do you think we are best to destroy the rest of the files and keep only minimal info? The connection is with [name of staff member in charge of looking after the files] and I think when she retires in the next five years we would do just that as we would have no connection and frame of reference to that bit of history and no legal obligation to hold them."
One minute later, Mr Barton answered: "Yes, I think so but at an appropriate milestone or anniversary."
According to Mr Barton, Ms Bremner’s question was preceded by another — she had firstly asked whether a file should be released to the lawyer of someone alleging abuse while in PSO care. Mr Barton had said yes.
His next answer — to the embryonic destruction proposal — is slammed by one of New Zealand’s leading minds in ethical law, the University of Auckland’s Prof Tim Dare.
"He should have said that while the organisation may have been legally entitled to destroy files, it would be unethical to do so. The organisation ought to have accepted their moral responsibility to children harmed in their care and taken every step to help abuse survivors obtain redress and compensation."
Around Christmas 2017, Ms Bremner, after earlier that year announcing plans to retire, went ahead with her proposal and organised a mass destruction of the children’s records.
As a result, the records were no longer available to be consulted in cases of abuse allegations that could lead to compensatory payouts by the charity. They were also no longer available to former residents, to give them a better understanding of their childhoods. Families were known to have come from all over to look at them.
Mr Barton was not any old lawyer. He was also one of Ms Bremner’s bosses, sitting for an extraordinary 27 years on the charity’s board until 2020. His PSO relationship with Ms Bremner went way back — they both entered their respective PSO roles in 1993.
Current PSO chairwoman Stephanie Pettigrew said the PSO board, which carries ultimate accountability for the way the charity is run, saw the email exchange between Ms Bremner and Mr Barton for the first time in January this year and the board saw "no grounds for a complaint" to the Law Society against Mr Barton.
Otago regional councillor Tim Mepham who, for a decade ending last year, was PSO deputy chairman and then chairman, stresses his "faith" in Mr Barton.
"The thing that I find disappointing is that there are people who want to tear him down. Why? Why? ... Perhaps because he is good at what he does?"
At least two lawyers, neither thought to be in Otago, have seen things differently from the PSO board and Mr Mepham. They have officially complained about Mr Barton to the Law Society.
A powerful man under investigation
By the time of the email exchange, only someone living under a rock would have been unaware of allegations of child abuse in faith-based care. Australia was halfway through its inquiry into institutional abuse and calls were growing for a New Zealand one, eventually set up in 2018. The topic had even hit the box office. The movie Spotlight, about the Boston Globe’s investigation into sexual abuse by Catholic priests, had come out the year before.
Mr Barton may not be a movie-goer but he is, and was then, a senior lawyer. A partner at law firm Anderson Lloyd since 2001, he entered the law profession in 1985 armed with a first-class degree from the University of Otago.
The son of a Presbyterian minister, Mr Barton was, by the time of the email, a fully fledged part of the establishment — a long-serving PSO board member, on the Presbyterian Church’s judicial panel and on Otago University’s presiding council, which he joined that year. He is chairman of the university’s committee covering ethics.
Mr Barton has taken a leave of absence from both his Law Society presidency and the university council while the two lawyer complaints against him are investigated by the Law Society’s standards committee. The complaints relate to the email exchange and were raised after the email was mentioned, and Mr Barton and Ms Bremner named as its correspondents, in the final report of the Royal Commission of Inquiry into Abuse in Care last month.
The standards committee will decide whether to deal with the complaints itself or refer the issue to the lawyers’ disciplinary tribunal.
According to Prof Dare, the ethical importance of preserving children’s files in a faith-based institute that had run children’s homes, and had faced abuse allegations, should have been clear.
An allegation in early 2016 was not the first or last to arrive at PSO’s door. A centennial book about PSO, published a decade earlier in 2006 and written by independent historians, had mentioned three allegations, one from a century ago, the other two more recently. At least one more arrived in 2017.
"There are suggestions he [Mr Barton] was acting as an informal adviser, rather than as the organisation’s lawyer but I think this makes his behaviour more unethical. As an informal legal adviser, a member of the PSO board and a member of the church’s judicial panel, he had a moral obligation to give priority to the interests of the survivors of abuse rather than to the reputational and financial interests of the organisation," Prof Dare said.
"He should have known better."
Prof Dare believes Mr Barton’s conduct was disgraceful.
PSO’s constitution says the charity’s board must "act in good faith in what each member believes to be the best interests of Presbyterian Support and with due care, diligence and skill".
Otago law professor Selene Mize said she could not comment on Mr Barton’s situation but raised the issue of possible conflicts of interest between lawyers’ personal roles and giving legal advice.
"It makes no difference whether the lawyer was being paid for their legal advice or not, so long as they were acting as a lawyer."
The royal commission
The children’s files, vital to keep in case of survivor claims or possibly criminal investigations into abuse offenders, had been kept locked in a cupboard in the charity’s basement. The key was kept by the long-serving staff member mentioned in the email exchange. Sources claim the staff member — who had worked in the children’s homes and knew the files well — was edged out of the charity around the time the files were destroyed.
The records’ destruction happened, by all accounts, around Christmas 2017, although no-one seems to know how. It may have involved others. According to former employees, whatever Ms Bremner ordered, got done.
Mr Mepham said he would describe her leadership as being "governance and management all at the same time". He felt that, in retrospect, the organisation had placed "too much faith in her".
As made clear in the Charities Act 2005, board members, not chief executives, ultimately carry the can. They must pay attention to what is going on, ask questions and be accountable for what happens.
By the time of the records’ destruction, at least one more abuse allegation had arrived at PSO and the Royal Commission of Inquiry into Abuse in Care had been announced as a government 100-day promise.
Ms Bremner had announced she would be leaving the following year, although she then came out of retirement for a short stint when her replacement got sick and had to leave.
Between 2019 and 2022, under the leadership of Jo O’Neill, the charity settled at least two claims from abuse survivors and collected evidence to submit to the commission.
In 2022, Ms O’Neill gave oral evidence to the commission, during which harrowing abuse recollections by abuse survivors were discussed.
The commission also reported on PSO’s destruction of the children’s records, which Ms O’Neill had uncovered during her evidence-collecting. The commission reported that Ms O’Neill had been told, by Ms Bremner, that Ms Bremner had consulted Mr Barton for "informal" advice before the records were destroyed.
The commission chose not to name either Ms Bremner or Mr Barton at that time.
The Presbyterian Church then appointed Kirsty McDonald, KC, to lead an independent investigation into alleged abuse discussed by the commission, but her findings were inconclusive. There is no way of knowing whether records destroyed more than four years earlier would have assisted her investigation.
Defence by media
The basement in which the children’s records had been stored is by all accounts a horrible place underneath the charity’s Dunedin headquarters, with pipes that gurgle and occasionally leak.
It took until July this year — eight years after the email exchange — for Mr Barton to find himself in an equally horrible place. In its final report in 2024, the commission decided to bite the bullet and name Ms Bremner as the person who organised the records’ destruction and Mr Barton as the person she informally consulted about it.
The standards committee will doubtless be considering the email exchange’s wording, which the commission, now disbanded, did not publish in its final report last month. The commission instead published an ambiguous precis of the email exchange that left journalists wanting to establish whether Mr Barton had given a rather dry answer about the legality of record destruction, or given a throw-away amber or green light to an embryonic plan.
Ms Bremner, thought to be in Botswana, proved uncontactable. Mr Barton proved very contactable. Several media outlets, including the Otago Daily Times, interviewed him at the end of last month about the 2016 exchange with Ms Bremner.
These interviews were conducted when the actual email exchange — revealing Ms Bremner’s destruction idea and Mr Barton’s response — was not in the public domain.
The ODT has sourced the email exchange this month, after talking to more than one person who had seen it.
In one of the interviews, on RNZ on July 26, Mr Barton stridently defended a position: he was ignorant of any idea to destroy records; he appeared righteous about the horror of it; and he was knowledgeable that it should not have happened.
Here’s an extract: "... it did not seem at all evident there was going to be a destruction. It should not have happened. It was appalling. They [the children’s records] should not have been destroyed ... I did not think anyone would be contemplating destroying those documents because you can’t deal with any claims that come along if you don’t have the records. From a practical point of view it is ridiculous."
Hang on right there. It seems clear from the email exchange that Ms Bremner was contemplating a mass binning of "the rest of the files", and Mr Barton had not objected.
In the interview, it is obvious that Mr Barton stumbles over the words "should" and "can".
"The inquiry of me ... asked essentially, erm, should these files, can these files, be destroyed and I said at an appropriate time and no-one ever came back to ask what an appropriate time was."
Around the same time as the RNZ interview, Mr Barton mused to the ODT that he could have been misunderstood by Ms Bremner.
"I don’t know if there has been some misunderstanding by management," he said. "From a practical point of view how [can the charity] deal ... if you don’t have any records? You cannot! You have got to have the records! How can you expect to deal with future claims if [they are] destroyed. It does not stand to reason! I am appalled!"
Mr Barton said if Ms Bremner had asked when destruction might be appropriate, he would have said 100 years after someone’s birth or "something like that, way into the future".
Hang on again. Ms Bremner proposed it should happen in around five years and Mr Barton had not responded that this was too soon.
Mr Barton knows the ODT has the email exchange. He has now indicated he does not want to comment on the record about it any more.
Dragged into the light — slowly
When Ms Bremner wrote "do you think we are best to destroy the rest of the files" in the destruction email she could have been referring to Mr Barton and herself, because they were on the same team.
There had been time, while Ms Bremner and Mr Barton were still at PSO’s helm, or afterwards while the commission was still seeking evidence, for the two of them to remember the email exchange, discuss Ms Bremner’s chuck-out idea, prevent it or bemoan it having already happened, and at the very least bring the email exchange to the attention of the PSO board and the commission in a transparent and timely manner.
They did not, according to PSO.
Current PSO chairwoman Stephanie Pettigrew has worked to distance the charity from the email exchange and the destruction. She told the ODT this week that "the 14,000 documents handed to the commission [by the charity] in 2021 did not contain the 2016 email exchange ... because we didn’t know it existed at that time".
According Mr Mepham, the PSO board had set up a subcommittee to oversee Ms O’Neill’s work collecting evidence for the commission. The subcommittee comprised three board members with legal minds: Ms Pettigrew, Kerry Enright and Jessica Palmer.
Ms Pettigrew, who is also a lawyer, joined the board in late 2017, becoming deputy chairwoman in 2019 and chairwoman in 2023. She has served on the Presbyterian Church’s judicial panel alongside Mr Barton.
Mr Enright practised law before becoming a Presbyterian minister at Knox Church. He is in charge of the Presbyterian Church’s rule book, including its code of ethics and child protection policy. He joined the board around 2020.
Ms Palmer is a law academic at the University of Otago, deputy vice-chancellor in charge of external engagement and a vice-president of Christian students’ body TSCF. She joined the PSO board around the same time as Mr Enright.
PSO has told the ODT that despite these legal minds, and Mr Barton also being on the board until 2020, it was not until January 2024 the email exchange "came to light".
Ms Pettigrew: "In January 2024 Mr Barton’s firm found the 2016 exchange ... and Mr Barton provided that email directly to the commission and informed the PSO board of its existence."
This begs a big question. If the board had known, since 2021, that Ms Bremner had told Ms O’Neill that she had communicated with Mr Barton and destroyed the records on his advice, did the board make any, or effectual, efforts to investigate internally and prove or disprove Ms Bremner’s huge claim at that time? It is not apparent that anyone on the board asked Ms Bremner or Mr Barton, back then, to identify that they had communicated with each other by email, or then work to unearth that email and by doing so, confirm, broadly, that what Ms Bremner said had happened did, in fact, happen.
The fact the email exchange has now been found demonstrates it was not an impossible task to locate it.
There is then the question of who then caused the email to "come to light" in January 2024. Did Mr Barton decide to take the time to do a belated, thorough hunt for it for some unknown reason? Or did the royal commission issue him with a formal edict to go hunting — called a "notice to produce" — with a deadline? The ODT contacted the DIA, which was unable to answer who instigated the email hunt, due to the commission now being closed.
If it was the former, it also begged the question why Mr Barton hadn’t dug out the email years ago.
A matter of faith
The next obvious question is whether the several lawyers on the PSO board will now file complaints about Mr Barton to the Law Society.
A source indicated to the ODT that Ms Pettigrew read the 2016 email in January this year — she did not just become "informed ... of its existence".
Whether she had read the email or not felt an important question for the ODT to pursue. If she had read it, there was even more reason than previously that she, or other board members who might also have read it, might consider with probity complaining to the Law Society about Mr Barton. It is understood that neither of the two lawyers complaining about Mr Barton is from Otago.
The ODT went back to Ms Pettigrew yesterday, who confirmed Mr Barton had provided a copy of the email exchange to the PSO board in January 2024. She then stated a surprisingly strong view, on behalf of the PSO board.
"No member of the PSO board made a complaint to the Law Society about Mr Barton in relation to the 2016 email exchange with Mrs Bremner because there were no grounds for complaint."
A reminder: in the email exchange, Ms Bremner suggests a mass destruction of children’s records and proposes when she might do it. Mr Barton fails to say "do not do it".
Mr Mepham said he had not seen the 2016 email when the ODT talked to him earlier this week. Mr Mepham — a Presbyterian church elder who sat on the PSO board for a total of 15 years — fervently defended Mr Barton, saying he had "faith" in him and what he had said on the radio last month.
The ODT suggested to Mr Mepham that Ms Bremner might have asked Mr Barton a question about an embryonic proposal she was thinking about, to destroy records. Mr Mepham’s reaction was defensive, bordering on angry.
"You’re just making it up ... Sounds like something out of a book. Why can’t you take it as it is? Frazer has gone on the radio ... Why would I disbelieve something somebody tells me? I believe what Frazer said. I believe the man. Do you know Frazer at all? ... . How do you think he became president of the Law Society?
"The thing that I find disappointing is that there are people who want to tear him down. Why? Why? ... Perhaps because he is good at what he does?"
At least one of the two complainants is unfazed by Mr Barton’s high standing.
Wellington lawyer Sam Benton, of Cooper Legal, has worked for decades to settle claims of child abuse survivors against numerous institutes and is familiar with organisations saying records are not available for one reason or another.
He points out that a lawyer who has reasonable grounds for suspecting possible misconduct must report it at the earliest opportunity.
"That is a must. You must report it. It is for the protection of the public and a very strong obligation reflected in other codes of conduct and there for a reason. When I made my report I had that first, and foremost, in my mind.
"I would hope that any other lawyers who had become aware of the information in the [commission’s] report, or perhaps become aware of the advice given by Mr Barton in other ways, would do this too."
Steve Goodlass, an abuse survivor and spokesman for the Network of Survivors of Abuse in Faith-Based Institutions, has the last word.
"What the abuse in care inquiry’s public hearings have shown us is the sad and deeply concerning way in which members of the legal fraternity have been willing to put aside their morality, and in some cases their professional ethics, when assisting their institutional clients to avoid accountability."
- Additional reporting by Tim Scott
