Inquiries – public or private

Inquiries are 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.  The more public ones are often conducted under statute and can afford the inquirer, in certain circumstances, some measure of immunity.  Entities such as the Law Commission and the Ombudsman have statutory powers to enquire into events or issues.  Being asked to conduct an enquiry by on behalf of an organisation in respect of a more private matter can present a different set of challenges.

In that first category of public inquiries, recent examples include the investigation into breaches of privacy caused by ACC sending thousands of ACC files to the wrong person.  This is to be investigated by KPMG and Malcolm Crompton, a former Australian Federal Privacy Commissioner and has been commissioned by ACC and the office of the Privacy Commissioner.  The Privacy Commissioner’s functions include the ability to enquire generally into any matter relating to the privacy of the individual under section 13 of the Privacy Act.  At the same time, the Auditor-General has announced that she will undertake an enquiry into ACC’s governance, focusing particularly on ACC’s management of conflicts of interest, its legal compliance, and the communications between ACC’s Board members and clients and staff.

The Auditor-General’s inquiry is being carried out under section 18(1) of the Public Audit Act 2001.  This provides that the Auditor-General may enquire, 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.

Two Royal Commissions of Inquiry are also underway: the first, into the Pike River mine tragedy and the second into the causes of building failure in the Canterbury earthquake.  A Royal Commission of Inquiry is conducted under the Commissions of Inquiry Act 1908.  This legislation provides the basis for the establishment of a commission, although the procedure to be followed in individual cases is usually a matter for the commissioners to decide upon.

Formal inquiries such as these follow well-trodden paths and a number of precedents are available to establish at least a framework for them.  In particular, extensive guidance can be found in a Department of Internal Affairs publication: Setting up and Running Commissions of Enquiry.

An advantage of a formal commission of enquiry is the statutory framework under which it is established, which provides a level of immunity for the Commissioners and invests them with certain statutory powers.  Not, however, that the framework is not perfect as, following a Law Commission report on the subject published in 2008, a new Inquiries Bill was introduced to Parliament.  It is currently at the second reading stage.

These statutory protections and powers are obviously not available for inquiries which are not established under a statutory framework, although many of the procedures and phases through which an enquiry passes may not be so very different.

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 inquiries into inappropriate conduct in the workplace, to allegations of leaked information or of bias.  Where there is capacity in-house to conduct such an enquiry, it often falls to the legal team to undertake it.  This has both pros and cons.  On the plus side, the enquiry is internal and discreet, staff who may need to be interviewed may feel less threatened with an internal person and yet the professional obligations of an in-house lawyer allow a measure of independence to be achieved.  On the downside, the in-house lawyer’s position as a “trusted adviser” within the organisation can be compromised and the time taken to appropriately undertake a wide variety of interviews with staff can be problematic if resources cannot easily be freed up.  The principles of natural justice however require that these things not be rushed.

Public or private however and whether under the media spotlight or not, accountability demands that certain matters be investigated.  Whether the truth of the matter or allegation can be ascertained is not always an achievable goal.

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