New Zealand Law Commission Report on Public Inquiries

The Law Commission of New Zealand has released a draft report which reviews and makes proposals about the law relating to public inquiries, including royal commissions and commissions of inquiry, both of which operate under the Commissions of Inquiry Act 1908, and non-statutory ministerial inquiries:

"The Law Commission has identified three broad problems with the existing inquiry structure. First, the 1908 Act is antiquated and has been amended many times, sometimes in response to one-off situations. Many of its provisions are confusing and some place constraints on procedure that add time and money to inquiries, without necessarily enhancing their effectiveness. A complete reexamination of the Act is long overdue".

"In addition, royal commissions and commissions of inquiry are costly. They tend to adopt legalistic procedures and have become constrained by the culture that has developed around them. As a result, the 1908 Act is used infrequently. Changes in both the law and culture are required to enable inquiries to be as effective and efficient as possible so that their use is not deterred".

"Finally, non-statutory ministerial inquiries take place outside a statutory framework. These inquiries appear to be increasingly preferred. They are often seen as a quick and cost-effective way to have an independent investigation, but do not have any coercive powers, instead relying solely on witness cooperation. They offer no immunities for those taking part; and there is a lack of clarity around how other protections such as judicial review and the Official Information Act 1982 apply to them. Ministers need to be provided with a form of statutory inquiry that they can use for both the less complex, discrete issues requiring investigation, as well as those of greater breadth and complexity".

"We propose that the 1908 Act be replaced by a new Public Inquiries Act. The new ct should maximise flexibility and free inquiries from the procedural constraints and traditions that have dogged commissions".

" 'Public inquiries' should replace both commissions of inquiry and royal commissions and subsume ministerial inquiries. The adversarial concepts of 'parties' and 'persons entitled to be heard' should be removed from the Act. The automatic provisions that give these participants a right 'to appear and be heard' and a right to representation should be abandoned in favour of more flexible provisions which accord with natural justice. The anachronisms of the 1908 Act, including the complicated provisions relating to contempt and differing powers depending on the status of individual inquirers, should also be removed".

"The proposed Act would minimise the likelihood of costly and delaying litigation on the periphery of inquiries by enhancing inquirers’ powers to conduct the inquiry as they see fit, within the constraints of natural justice; clarifying the rules surrounding public access to inquiries; and giving directions about natural justice. The creation of new offences directed at controlling behaviour both before and outside inquiries will enhance their ability to control abuse of their processes".