Advising clients in public inquiries: new challenges
By Polly Pope and Catherine Marks
The law governing the more powerful public inquiries has been substantially modernised with the passing of the Inquiries Act 2013. The new environment creates new challenges for those who may be affected by an inquiry. This article highlights the key changes lawyers need to be aware of when advising on public and government inquiries.
Context of the reforms
The Inquiries Act is intended to herald a sea change in the way that significant inquiries are conducted. The Act followed a substantial review by the Law Commission of the law relating to public inquiries in 2007/2008 (the reforms were put on hold pending the Royal Commission on the Pike River Coal Mine Tragedy and the Canterbury Earthquakes Royal Commission)1.
In particular, the Law Commission recommended that the new Inquiries Act:2
- maximise flexibility and lessen procedural constraints;
- provide for two types of inquiries, namely public inquiries (taking over the ground formerly occupied by commissions of inquiry and royal commissions) and government inquiries (a new species of ministerial inquiry);
- remove the adversarial concepts of "parties", "persons entitled to be heard", and "right to be heard" as part of a move to flexible procedures that accord with natural justice; and
- reduce the likelihood of litigation on the periphery of an inquiry.
New names and new powers for inquiries
Commissions of inquiry and royal commissions are collectively treated as "public inquiries" under the Inquiries Act and will continue to have equivalent powers to one another – although these powers have been substantially amended.
One of the most significant changes is that there is now a statutory basis available for what have historically been called ministerial inquiries. Previously, ministerial inquiries were conducted without the power to compel witnesses or require the production of documents, and no protections were afforded to those who provided evidence to them. The Government can now establish "government inquiries" under the Act, which have access to all the procedural and inquisitorial powers and protections provided to public inquiries.3 The difference between government and public inquiries now lies in the way each is appointed and how each reports. Government inquiries are appointed by a minister and their report need not be tabled in Parliament.4
Government inquiries were designed to remove the need for non-statutory ministerial inquiries. Indeed, the Law Commission anticipated that government inquiries would replace non-statutory ministerial inquiries.5 To this end, the Law Commission recommended that work be done to clarify the status of non-statutory ministerial inquiries under the Public Records Act 2005, the Official Information Act 1982 and the Cabinet Manual.6 However, the Public Records Act has yet to be amended to clarify the status of non-ministerial inquiries. The Official Information Act 1982 has been amended following the enactment of the Inquiries Act, but does not clarify the status of non-statutory ministerial inquiries.
Importantly, the Cabinet Manual 2008 is still in force, so a minister may continue to have a non-statutory power to establish an inquiry as well as the power to establish a government inquiry under the Inquiries Act.7
It is unclear whether a key objective of government inquiries (to replace non-statutory ministerial inquiries) has been achieved. The Foreign Affairs Minister Murray McCully recently established a non-statutory ministerial inquiry into the way the Ministry of Foreign Affairs and Trade handled the case of a Malaysian High Commission official accused of an attack on a Wellington woman. Hence it appears the non-statutory ministerial inquiry process outlined in the Cabinet Manual is still viewed as an available and appropriate mechanism.
Primacy of terms of reference
Public inquiries can be established under the Letters Patent (for royal commissions) or by Order in Council. Government inquiries are established by one or more ministers by notice in the Gazette. The terms of reference must be published before an inquiry can consider evidence [Inquiries Act ss 7(1) and 7(3)]. This can be in the establishment instrument or notified by the relevant minister in the Gazette as soon as reasonably practicable thereafter [Inquiries Act ss 6(2) and 6(3)].
The terms of reference are critical to the scope and direction of a public inquiry. These are ultimately determined by the relevant minister who has considerable flexibility under the Inquiries Act when deciding these terms.8 The relevant minister also has a power to amend the terms of reference at any time during the inquiry by way of notice in theGazette [Inquiries Act s 7(5)]. The minister is not required to consult with the "person appointed to the inquiry" and/or the chairperson on the terms of reference (or any amendment), although there is a power to do so (and in practice this would be expected to happen) [Inquiries Act s 7(6)]. These broad powers mean that the terms of reference may well reflect political sensitivities surrounding a particular inquiry, particularly where the government is at risk of adverse findings. The ability to amend terms of reference also means the direction of an inquiry can be managed throughout the process (although potential negative public reaction to change mid-inquiry would act as a constraint).
The minister is arguably not prohibited from consulting more widely and informally on the terms of reference for an inquiry. For those potentially affected by an inquiry, any ability to provide early input into the appropriate scope of the terms of reference should be explored.
Flexible procedure based on principles of natural justice
The terms of reference may also shape the procedure followed by the inquiry. The Inquiries Act gives public and government inquiries the discretion to regulate their own procedure, subject to the terms of reference of the inquiry [Inquiries Act s 14(1)]. In doing so, an inquiry must both comply with the principles of natural justice and have regard to the need to avoid unnecessary delay or cost [Inquiries Act s 14(2)]. Within those bounds, an inquiry may determine matters such as whether to hold hearings, conduct interviews, receive written or oral evidence or submissions, and whether to allow or restrict cross-examination [Inquiries Act s 14(4)]. The result of these reforms is that it is possible that public and government inquiries may now look very different from commissions of inquiry conducted in the past.
The Inquiries Act does not attempt to codify all of the applicable principles of natural justice, but does set out certain core requirements:
- An inquiry and each of its members has a statutory duty to act independently, impartially, and fairly [Inquiries Act s 10].
- Every person designated as a "core participant" has a right to give evidence and make submissions [Inquiries Act s 17(3). However, this does not necessarily mean that hearings must be allowed – an inquiry may, for instance, decide that submissions may be filed in writing instead.9
- 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 [Inquiries Act s 14(3)]. Interestingly, the Law Commission had recommended that when there is a proposed adverse finding, an inquiry must give the person concerned "reasonable time and reasonable opportunity" to refute or respond to the proposed findings or allegations and must then give proper consideration to those representations.10 The Bill was amended to remove this requirement.11 One of the reasons for its removal was that requiring an inquiry to send a notice to every person whom the inquiry made an adverse finding against, and giving each person time to respond, would have "imposed a huge burden on the commission to contact hundreds of people".12 The change was intended to make the application of the rules of natural justice "less prescriptive".13
The conduct of inquiries is therefore very much at the discretion of the inquiry. It remains to be seen the extent to which inquiries adopt procedures significantly different from those of their predecessors.
Importance of being designated a "core participant"
The new flexibility under the Inquiries Act includes a simplification of the question of standing before an inquiry. The concept of "parties" to an inquiry has been abandoned, and instead the Inquiries Act empowers public and government inquiries to designate a person to be a "core participant" in the inquiry. This status gives a person the right to give evidence and make submissions, subject to any directions of the inquiry as to the manner in which evidence is given and submissions made [Inquiries Act s 17]. Obtaining designation as a "core participant" may therefore be a crucial goal for those who wish to have a right to participate in the inquiry.
In deciding whether to designate a person as a core participant, the inquiry must consider whether that person:
- played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;
- has a significant interest in a substantial aspect of the matters to which the inquiry relates; and
- may be subject to explicit or serious criticism during the inquiry or in the report [Inquiries Act s 17].
However, public inquiries and government inquiries may have an interest in hearing the views of people who are not "core participants" under the Inquiries Act.
Rules of evidence
Public and government inquiries may receive evidence whether or not it would be admissible in court. However, the same privileges that apply to allow a person to withhold documents or evidence in civil proceedings apply to public and government inquiries [Inquiries Act s 27]. This includes legal professional privilege, which will protect confidential communications with a legal adviser intended to be confidential and made in the course of and for the purposes of obtaining or giving professional legal services [Evidence Act 2006 s 54]. Communications and information made for the dominant purpose of preparing for an apprehended "proceeding" (for information, expert witness reports) may also be withheld from production to an inquiry [Evidence Act s56]. However, there is some scope for debate as to whether this privilege will also protect preparatory materials relating to the inquiry itself (where they are not subject to legal advice privilege).14
Findings of liability and fault
The Inquiries Act expressly provides that public and government inquiries are not able to determine civil, criminal or disciplinary liability.15 However, inquiries are not prevented from making findings of fault or recommendations that further steps be taken to determine liability.16 Such steps can, however, be taken only in the context of the inquiry's powers and duties under the Inquiries Act. The limitation that adverse findings can only be made where relevant to the terms of reference appears to remain. Further, if an inquiry proposes to make a finding that is adverse to any person, the inquiry must be satisfied that the person is aware of the matter on which the proposed finding is based and has had an opportunity to respond [Inquiries Act s 14(3)].
Particular challenges may arise where criminal proceedings are under way at the same time as an inquiry. The Inquiries Act now allows public and government inquiries to postpone or suspend their work of their own accord, after consultation with the appropriate minister. This power can be exercised where a parallel investigation is or is likely to be carved out and the inquiry is likely to prejudice that investigation or any interested person.17
Public access to inquiry documents
The Inquiries Act provides public inquiries and government inquiries with the power to impose restrictions on access to evidence and submissions, hold inquiries in private and to restrict public access to any part of an inquiry [Inquiries Act s 15].
The final report of a public inquiry must be presented by the appropriate minister to Parliament as soon as practicable after the inquiry has reported [Inquiries Act s 12(3)]. A government inquiry is required to prepare a report and present it to the appointing minister. It is therefore not necessarily made public [Inquiries Act s 12]. However, once a public or government inquiry has reported, all documents created by the inquiry (including the report) or received in the course of the inquiry become official information and subject to a request under the Official Information Act 1982, except:
- where an order forbidding publication has been made by the inquiry; or
- the documents relate to the internal deliberations of the inquiry and were:
a. created by a member of an inquiry in the course of the inquiry; or
b. provided to the inquiry by an officer of the inquiry [Inquiries Act s 32].
Polly Pope is a litigation partner of Russell McVeagh, based in Auckland. She specialises in commercial litigation and dispute resolution. Catherine Marks is a consultant in Russell McVeagh's Wellington office. She specialises in administrative and regulatory law and public law litigation.
- Inquiries Bill 2008 (283).
- Law Commission A New Inquiries Act (NZLC R102, 2008) at  – .
- Law Commission A New Inquiries Act (NZLC R102, 2008) at [2.26] – [2.31].
- Inquiries Act 2013, ss 6 and 12; Law Commission A New Inquiries Act (NZLC R102, 2008) at [2.27].
- Law Commission A New Inquiries Act (NZLC R102, 2008) at [2.28] and [2.33].
- Law Commission A New Inquiries Act (NZLC R102, 2008) at  and [R34].
- For example, in July 2014, Foreign Minister Murray McCully announced that a ministerial inquiry would be held into the handling of the case of a Malaysian diplomat who allegedly attacked a Wellington woman. No notice of this appears to have been published in the Gazette. Instead, a media release and the terms of reference were published on the National Party and the New Zealand Government websites.
- Either directly or by way of recommendation to the Governor-General (where the Order in Council establishment process applies). See: Inquiries Act 2013, s 7(4).
- Law Commission A New Inquiries Act (NZLC R102, 2008) at [4.41]-[4.44] and [4.54].
- Law Commission A New Inquiries Act (NZLC R102, 2008) at R15(c) and (d); Inquiries Bill 283-1, cl 17.
- (21 August 2013) 692 NZPD 12716.
- (20 August 2013) 692 NZPD 12631 quoting John Hayes (National).
- (20 August 2013) 692 NZPD 12631 quoting John Hayes (National).
- Law Commission A New Inquiries Act (NZLC R102, 2008) at [9.55] – [9.56] citing:In re L. (a minor) (Police Investigation: Privilege)  1 AC 16 (HL) and United States of America v Philip Morris  EWCA (Civ) 330.
- Law Commission A New Inquiries Act (NZLC R102, 2008) at [3.12], [3.13] and [R8].
- By way of example, see: Canterbury Earthquakes Royal Commission Volume 6: Canterbury Television Building (CTV) (29 November 2012) at 71.
- Law Commission A New Inquiries Act (NZLC R102, 2008) at [3.16]; Inquiries Act 2013, s 16.
This article was also published in LawTalk 864, 8 May 2015, page 32.
Last updated on the 22nd July 2015