Inquiries, reviews and reviews of inquiries…

Inquiries seem to be a fact of life these days. They come in all shapes and sizes. Some are obviously very public, whilst others are conducted well out of the glare of the media and their very existence may be highly confidential. The more public ones are often conducted under particular statutory provisions. Entities such as the Auditor-General, the State Services Commissioner and the Ombudsman have statutory powers (and, usually, immunities) to inquire into events or issues. Conversely, being asked to conduct an inquiry by on behalf of an organisation in respect of a more private matter can present a different set of challenges.

Why undertake an inquiry?

An inquiry is often announced to assure the public that some particular issue of concern will receive the (generally independent) scrutiny it requires. Sometimes the very fact of announcing an inquiry or review is enough to take the heat out of a particular issue, whilst the announcement of the results of that inquiry or review can go almost unnoticed.

A lack of independence can undermine the credibility of a review; witness the review undertaken at the end of last year by the New Zealand Rugby Union into the recent Chiefs debacle. Stuff reported:

“The Chiefs board has announced they’ll review their handling of the stripper fracas and its fallout, as players and prominent Kiwis condemn how the investigation was handled.”

The condemnation of “how the investigation was handled” appeared to be in large part because it was not undertaken by an independent party, but by an employee of New Zealand Rugby.

Independent barristers, along with senior (often ex-) public servants, have been involved in their fair share of both formal and informal inquiries recently.

Before looking at some of the challenges in undertaking such an inquiry, this article summarises some of the different statutory powers available to those who do so (noting that this is not an exhaustive list).

Some relevant legislative provisions

  • Inquiries Act 2013

 

This Act came into force in August 2013 following an extensive Law Commission review. Its purpose is to modernise the law relating to inquiries. It now gives a statutory basis for “public inquiries”, enabling them to enjoy certain procedural and inquisitorial powers which only Commissions of inquiry established under the Commissions of Inquiry Act 1908 (such as the Pike River inquiry and that into the causes of building failure in the Canterbury earthquake) previously enjoyed. It also specifically makes reference to the need for an inquiry, and each of its members, to “act independently, impartially and fairly” (section 10).

It was expected that the protections afforded by this legislation would mean that ministerial inquiries would no longer be undertaken, but even after the Act came into force, in July 2014 Foreign Affairs Minister Murray McCully confirmed that John Whitehead, former Secretary to the Treasury, would head a “Ministerial Inquiry” into how “ambiguity” was created about New Zealand’s position on the fate of a Malaysian High Commission official accused of an attack on a Wellington woman.

It is to be assumed, however, that the Act will generally be used where possible. Under it, inquiries can now be one of 3 types – a Royal commission, a public inquiry established by the Governor-General or a government inquiry established by a Minister and notified in the Gazette, in the latter two cases in respect of matters of public importance. All three types of inquiry enjoy the duties, powers, immunities and privileges set out in Part 3, including powers to take evidence on oath or affirmation (section 19), obtain information from any person (section 20), order disclosure of evidence to a person participating in the inquiry (section 22) and summon witnesses (section 23). In accordance with section 11, no inquiry has the power to determine the civil, criminal or disciplinary liability of any person – notwithstanding that an inquiry can make findings of fault or recommendations.

The differences between Royal Commissions, Public Inquiries and Government Inquiries lie in the way they are established, and the way they report.  A Royal Commission or a Public Inquiry is established by the Governor-General (on the advice of Ministers) and reports to the Governor-General.  Its report must be presented to the House of Representatives.  A Government Inquiry is appointed by and reports to one or more Ministers (section 6).

Recent “government inquiries” have included the Whey Protein Concentrate Contamination Incident chaired by Miriam Dean QC; the inquiry into allegations former minister Judith Collins was part of a smear campaign against former Serious Fraud Office boss Adam Feeley undertaken by former High Court judge, Hon Lester Chisholm, the inquiry into the escape of Philip John Smith, chaired by former High Court judge, Hon John Priestley CNZM QC and, more recently the enquiry into the Havelock North water supply contamination incident, chaired by another former High Court judge, Hon Lyn Stevens QC – which has just delayed its report-back.

The Act sets out some particular matters which are of relevance to all inquiries. A number of these are summarised below, including the importance of the terms of reference (section 7) and of the need to comply with the principles of natural justice (section 14).

  • Others

 

Other statutory officers and institutions have specific inquiry powers. Some examples are set out below. It is perhaps trite to say it, but when conducting an inquiry it is critical to be constantly mindful of the statutory basis for undertaking that enquiry.

Privacy Act 1993: The Privacy Commissioner’s functions include the ability to inquire generally into any matter relating to the privacy of the individual under section 13 of the Privacy Act. For example, in March 2012 the then Privacy Commissioner announced that her office had commissioned an independent inquiry and approved the terms of reference into the breach of privacy at ACC when thousands of files were sent to the wrong person.

Public Audit Act 2001: The Auditor-General has an inquiry power under section 18(1) of the Public Audit Act 2001. This provides that the Auditor-General may inquire, either on request or on her own initiative, into any matter concerning a public entity’s use of its resources. “Public entity” is given a wide meaning in section 5 of the Public Audit Act 2001 and includes the Crown, offices of Parliament, entities falling within a certain class such as community trusts, Council-controlled organisations, Crown entities, public service departments and state-owned enterprises, as well as a raft of specific named entities including the Nursing Council of New Zealand and the Plumbers, Gasfitters and Drainlayers Board.

The recent inquiry into the Saudi Arabia Food Security Partnership was conducted under this legislation.

Ombudsmen Act 1975: The Ombudsman has powers under section 13 of this Act “to investigate any decision or recommendation made, or any act done or omitted….. relating to a matter of administration and affecting any person or body of persons….”.

State Sector Act 1988: Under section 8, the Commissioner has the power to conduct any inspections or investigations that he or she considers necessary, or the relevant minister directs. Section 7 gives the Commissioner all such powers as are reasonably necessary or expedient to carry out the functions and duties imposed on the Commissioner under the Act.

Independent Crown Entities: The Transport Accident Investigation Act 1990 establishes the Transport Accident Investigation Commission as a standing commission of inquiry under the Commissions of Inquiry Act 1908. Thus, the powers available under that Act, and under TAIC’s own Act, are available to the Commission, whose principal purpose is “to determine the circumstances and causes of accidents and incidents with a view to avoiding similar occurrences in the future, rather than to ascribe blame to any person” (section 4). Other independent Crown entities, such as the Commerce Commission and the Law Commission, also have a variety of powers to inquire and review.

Non-statutory Inquiries

The vast bulk of inquiries, although not “enjoying” the same public profile, are however likely to be purely internal to an organisation. They can range from employment inquiries, for example into inappropriate conduct in the workplace, to allegations of leaked information or of bias. Where there is capacity in-house to conduct such an inquiry, it often falls to the legal team to undertake the inquiry itself or to be responsible for it by commissioning an independent lawyer to assist.

In-house inquiries can have both pros and cons. On the plus side, the inquiry is internal and discreet. On the downside, relevant statutory assistance and protections are absent. Without statutory powers to compel witnesses to give evidence, afford protection to those giving evidence or require documents to be produced, the “truth” of a matter or allegation cannot always be ascertained. In addition, the person conducting the inquiry can be exposed to liability. Allegations that the person conducting the inquiry has defamed a party named in a final report, or has not adhered to the relevant principles of natural justice, even if unfounded, can make undertaking such inquiries less attractive than might be thought. In some situations, assurances may be sought to hold the Inquirer harmless if such allegations result.

There is often an expectation that such inquiries can be very quickly conducted; this is not always the case. Ensuring that the terms of reference are robust, and that adequate time is allowed to uncover evidence (including interviewing relevant parties) whilst adhering to the principles of natural justice, require that these things not be rushed. Some important considerations are referred to below.

  • Terms of reference

 

As with all inquiries, and as is dealt with in section 7 of the Inquiries Act, the terms of reference are critical to the ambit of the relevant inquiry; an inquiry must be guided by them. The Ombudsman’s investigation into SSC’s conduct of the MFAT leaks inquiry makes a number of comments which are pertinent to anyone undertaking an inquiry. The report can be found at: http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/1587/original/investigation_into_ssc_conduct_of_mfat_leaks_inquiry.pdf?1466629016

In particular, the findings in MFAT’s final report were found to have exceeded the terms of reference for the inquiry. The problem with terms of reference, which need to be developed at the outset, can often be that as an inquiry continues it becomes obvious that they are inadequate in some way. In fact, in relation to the MFAT inquiry, they were amended some three weeks after the inquiry started. It is useful to include a provision allowing this to happen.

  • Conduct of the inquiry

 

Decisions will need to be made at the outset as to who might be interviewed, bearing in mind the ability (or lack of it) to “require” persons to be interviewed and give evidence. There is an overriding duty that any inquiry be fairly conducted, even if there is no statutory requirement to do so. In practice, this means that interviewees must be given proper notice of an interview and advised how that interview will be conducted; for example, whether the interview will be recorded and transcribed. Whilst an employee must comply with reasonable requests from his or her employer, such as attending an interview, generally no such requirement extends to others who might be able to contribute to the inquiry. This means that others can be invited to attend an interview, but cannot be compelled to do so.

  • Natural justice

 

Section 14 of the Inquiries Act specifically requires an inquiry to comply with the principles of natural justice. In particular, section 14 (3) provides that if an inquiry proposes to make a finding that is adverse to any person, the inquiry must be satisfied that the person is both aware of the matters on which the proposed finding is based and has had the opportunity to respond to those matters.

Any non-statutory inquiry must also adhere to these principles. Natural justice can be equated with the duty to act fairly. This concept has been clearly endorsed by the Court of Appeal for a number of years, since the leading case of Daganayasi v Minister of Immigration [1980] 2 NZLR 130.

Where allegations of misconduct are involved, the relevant person must be given notice of those allegations and a real, as opposed to nominal, opportunity to refute them. In the words of Cooke J in the Daganayasi case, the relevant person “should have a fair opportunity of correcting or contradicting any relevant statement prejudicial to his or her view”. Consideration of those explanations must be unbiased and free from predetermination, uninfluenced by irrelevant considerations.

A further important rule of natural justice is that an inquiry must also ensure that the evidence relied upon reasonably supports the conclusions reached (see Lord Diplock in Re Erebus Royal Commission (Re Erebus). [1]

In short, attention to some of these fundamental principles at the outset of an inquiry, whether statutory or not, can make the process more straightforward and reduce the chance of a successful challenge by, for example, judicial review.

[1] Re Erebus Royal Commission, Air New Zealand v Mahon [1983] NZLR 662 (PC) [Re Erebus] at 671

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