An Update on Inquiries and the new Inquiries Act 2013

When I last wrote about enquiries in April 2012, there seemed to be a number – some Ministerial, some Royal Commissions – which were then underway.  With what seemed to me, at least, to be a brief hiatus, the pace seems to have picked up again this year with various enquiries announced, and some already having reported back.

In July, 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.  The terms of reference can be found at:

Then in September, it was announced that former High Court judge, Hon Lester Chisholm, would conduct a Government Inquiry under the Enquiries Act 2013 into allegations former minister Judith Collins was part of a smear campaign against former Serious Fraud Office boss Adam Feeley.  In announcing it, the Prime Minister clearly made reference to this enquiry having “full powers of enquiry under the Inquiries Act 2013”. The terms of reference of this enquiry can be found here:

The findings of this enquiry were released by the Prime Minister on 25 November.  Mr Key said that “the report shows no evidence that Ms Collins acted inappropriately”.

Prime Minister John Key announced in November there would be an independent Government Inquiry into the recent escape of Philip John Smith and on 24 November, the State Services Minister released the draft terms of reference and announced that it would be chaired by former High Court judge, Hon John Priestley, who would be assisted by Simon Murdoch CNZM.  Like the enquiry conducted by Hon Lester Chisholm, this is to be established under the Inquiries Act, with an indicative 6 month enquiry period.  The draft terms of reference are available here:

The big difference between April 2012 and now is not necessarily the number of enquiries, but the new legislation, the Inquiries Act 2013, which came into force on 27 August last year.  Its purpose is to modernise the law relating to inquiries.  Under it, inquiries can be one of 3 types – a Royal Commission of Inquiry, 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.

A Government Inquiry has the same powers as a Royal Commission of Inquiry or a Public Inquiry, including powers to take evidence on oath or affirmation (s 19), obtain information from any person (s 20), order disclosure of evidence to a person participating in the inquiry (s 22) and summon witnesses(s 23).  In accordance with s11, 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 appointed, and the way in which they report.  A Royal Commission or a Public Inquiry is appointed 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 (s 6).

The first Government Inquiry appointed under the Inquiries Act was into the Whey Protein Concentrate Contamination Incident, which has just delivered its final report.  The ability for commissions (other than those which were previously formed under and governed by the Commissions of Enquiry Act 1908) to enjoy, for example, the powers to obtain evidence and immunity protection has the potential to allow such inquiries to be more effective.

Royal Commissions of Inquiry have recently been carried out in relation to the Canterbury Earthquakes and the Pike River Coal Mine Tragedy and it would appear that improvements identified during those Royal Commissions were able to be incorporated into the draft bill, building on the recommendations of the Law Commission.  According to the Law Commission’s website:

The Commission spent two years researching and consulting on its proposals, which have made their way into law without substantial change.  Its work in this area illustrates the important role the Commission plays in independently reviewing aspects of law and making practical and principled recommendations that have a positive impact on the whole of government and New Zealand society.”

It will be interesting to see whether, in practice, this Act assists the undertaking of these enquiries and whether the new processes, procedures and immunities enabled a more streamlined process.

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