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Public Inquiries Draft Report PUBLIC INQUIRIES DRAFT REPORT We seek feedback on the proposals in this paper. Please send your submissions to the General Manager, Law Commission, PO Box 2590, Wellington or to [email protected]. The deadline for submissions is 31 January 2008. DRAFT REPORT – FOR SUBMISSIONS BY 31 JANUARY 2008 The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: Right Honourable Sir Geoffrey Palmer – President Dr Warren Young – Deputy President Helen Aikman QC Professor John Burrows QC George Tanner QC Val Sim The General Manager of the Law Commission is Brigid Corcoran The office of the Law Commission is at Level 19, HP Tower, 171 Featherston Street, Wellington Postal address: PO Box 2590, Wellington 6001, New Zealand Document Exchange Number: sp 23534 Telephone: (04) 473-3453, Facsimile: (04) 914-4760 Email: [email protected] Internet: www.lawcom.govt.nz The Law Commission’s processes are essentially public, and it is subject to the Official Information Act 1982. Thus copies of submissions made to the Commission will normally be made available on request and the Commission may mention submissions in its reports. Any request for the withholding of information on the grounds of confidentiality or for any other reason will be determined in accordance with the Official Information Act. Issues Paper/Law Commission, Wellington 2007 ISSN 1177-7877 (Online) This paper maybe cited as NZLC IP5 This paper is available on the Commission’s website: www.lawcom.govt.nz 2 DRAFT REPORT – FOR SUBMISSIONS BY 31 JANUARY 2008 SUMMARY 5 LIST OF RECOMMENDATIONS 13 PART 1: A NEW FRAMEWORK FOR INQUIRIES 23 CHAPTER 1: INTRODUCTION 24 CHAPTER 2: PUBLIC INQUIRIES ACT 34 PART 2: SUBSTANCE OF THE ACT 45 CHAPTER 3: APPOINTMENT 46 CHAPTER 4: PROCEDURE, NATURAL JUSTICE AND PARTICIPATION 55 CHAPTER 5: POWERS TO REQUIRE EVIDENCE 79 CHAPTER 6: PUBLIC ACCESS TO INQUIRIES AND DOCUMENTATION 90 CHAPTER 7: COSTS ORDERS AND FUNDING LEGAL REPRESENTATION 109 CHAPTER 8: SANCTIONS 118 CHAPTER 9: EVIDENCE AND PRIVILEGE 131 CHAPTER 10: IMMUNITIES 153 CHAPTER 11: COURT SUPERVISION OF INQUIRIES 163 PART 3: COMPOSITION AND ADMINISTRATION OF INQUIRIES 175 CHAPTER 12: MEMBERSHIP 176 CHAPTER 13: COUNSEL ASSISTING 188 CHAPTER 14: FUNDING AND ADMINISTRATION 193 PART 4: OTHER INQUIRY BODIES 197 CHAPTER 15: OTHER INQUIRY BODIES 198 APPENDICES 205 APPENDIX A: NEW ZEALAND CASE LAW INVOLVING COMMISSIONS OF INQUIRY AND ROYAL COMMISSIONS 206 APPENDIX B: COMMISSIONS OF INQUIRY AND ROYAL COMMISSIONS SINCE 1976 224 APPENDIX C: MINISTERIAL INQUIRIES SINCE 1990 228 APPENDIX D: DURATION OF 1908 ACT COMMISSIONS 231 3 DRAFT REPORT – FOR SUBMISSIONS BY 31 JANUARY 2008 4 DRAFT REPORT – FOR SUBMISSIONS BY 31 JANUARY 2008 Summary THE NEED FOR CHANGE 1 In this paper, the Law Commission reviews and proposes changes to the law relating to public inquiries. By “public inquiries”, we mean royal commissions and commissions of inquiry, both of which operate under the Commissions of Inquiry Act 1908, and non-statutory ministerial inquiries. 2 Public inquiries investigate matters of policy, conduct or both. While they may be established for any combination of purposes, common to them all is the need to investigate a state of affairs and make recommendations for the future. Public inquiries play a vital role in public life and they need to be provided with the tools to be effective in their task. While they can provide governments with powerful investigatory tools, those involved in and investigated by inquiries need adequate protections. 3 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 re- examination of the Act is long overdue. 4 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. 5 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. 5 DRAFT REPORT – FOR SUBMISSIONS BY 31 JANUARY 2008 A NEW PUBLIC INQUIRIES ACT 6 We propose that the 1908 Act be replaced by a new Public Inquiries Act. The new Act should maximise flexibility and free inquiries from the procedural constraints and traditions that have dogged commissions. 7 “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. 8 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. 9 In this paper, we also recommend that guidance be given to those establishing inquiries, by way of the Cabinet Manual, and those conducting them, by way of Department of Internal Affairs guidelines. In particular, emphasis should be placed on the flexible nature of the new legislation and the less formal procedural options available to inquirers. 10 Not only are these amendments necessary to update and modernise the century- old legislation, they are required to make inquiries effective and efficient. The change in terminology and removal of certain provisions are necessary to encourage a change in the culture which now deters wider use of the 1908 Act. Furthermore, a complete reworking of the legislation is required to provide Ministers with a form of statutory inquiry that they can use when any matter of public importance, no matter its size or complexity, arises for independent review. SUBSTANCE OF THE ACT Appointment, status and conclusion of inquiries 11 All inquiries under the Act should be appointed by the Governor-General by Order in Council and their independence should be cemented in legislation. They should report to the Governor-General and their reports should be tabled in Parliament, subject to the ability to suppress sensitive information within a report. 12 To ensure that the time and cost of an inquiry is not wasted, consideration should be given to whether Government should respond to inquiry recommendations within 6 months of them reporting. 13 Public inquiries should be appointed to inquire and report on “any matter of public importance”, but it should be made clear that they are not to determine 6 DRAFT REPORT – FOR SUBMISSIONS BY 31 JANUARY 2008 civil, criminal, or disciplinary liability. We also propose that inquirers be given express power to temporarily suspend their inquiry where to continue could prejudice a pending or ongoing investigation into the same matter, but where this would mean going beyond their reporting date, a change to the terms of reference would be required. Procedure, natural justice and participation 14 The provisions of the 1908 Act encourage the adoption of unnecessarily adversarial practices. Arguments about an inquiry’s procedural powers can be minimised by setting some of these powers out in legislation, while still emphasising that inquiries are free to regulate their own proceedings. The Act should make it clear that, subject to the rules of natural justice, the inquirer is free to decide whether oral hearings are held; and whether to allow or restrict cross- examination, call witnesses, and receive oral evidence from or on behalf of a participant. 15 Inquiries should be able to proceed by a wide variety of means, such as informal meetings and interviews. Formal hearings akin to court processes are in fact required in the minority of instances. The legislation should not force such formal procedures upon inquiries where they are not efficient or effective or required by natural justice. 16 The provisions relating to “parties”, the right to appear and be heard and the right to representation should be replaced, but inquirers should be given some direction as to when to accord some participants greater involvement in the inquiry than others. They should be able to appoint “core participants”, but core participants should not automatically have the rights previously accorded to parties.
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