Public inquiries

General

 

4.69 This guidance provides information on different types of public inquiries, and the principles guiding the establishment of inquiries.

4.70 Further guidance on commissions of inquiry can be found in the Commissions of Inquiry Act 1908 and the Department of Internal Affairs publication Setting Up and Running Commissions of Inquiry.

4.71 Statutory commissions of inquiry, non-statutory ministerial inquiries, and standing statutory bodies with powers of inquiry have different powers and privileges, which should be considered when deciding on the most appropriate form of inquiry. Ministers and departments may seek advice from the Attorney-General or Solicitor-General, and from the Cabinet Office, on the choice of inquiry.

4.72 Any inquiry, whether statutory or non-statutory, acts independently from the government. Those conducting an inquiry may nonetheless consult with officials on technical matters and on the practical implications of any draft proposals.

4.73 All inquiries must follow the principles of natural justice.

Statutory commissions of inquiry

Commissions of inquiry

 

4.74 The Commissions of Inquiry Act 1908 provides that commissions of inquiry may be established by the Governor-General, by Order in Council, to inquire into and report on any question arising out of or concerning:

1. the administration of the government;
2. the working of any existing law;
3. the necessity or expediency of any legislation;
4. the conduct of any officer in the service of the Crown;
5. any disaster or accident (whether due to natural causes or otherwise) in which members of the public were killed or injured or were or might have been exposed to risk of death or injury; or
6. any other matter of public importance.

4.75 The Department of Internal Affairs is responsible for administering the Commissions of Inquiry Act 1908. The department provides administrative support to commissions of inquiry, unless it is determined that it would be inappropriate for the department to do so (for example, because of an actual or perceived conflict of interest).

Royal commissions of inquiry

4.76 Royal commissioners may be appointed by the Governor-General under Clause X of the Letters Patent Constituting the Office of Governor-General of New Zealand 1983 (see appendix A) to carry out inquiries. The Commissions of Inquiry Act 1908 extends to all royal commissions, which therefore have the same powers, functions, privileges, and immunities as commissioners appointed under the Act.

Powers and privileges of statutory commissions of inquiry

4.77 Commissions of inquiry have the power to require the production of evidence, to compel witnesses, and to take evidence on oath. Where powers of search and seizure are considered necessary, investigation by a specialist agency with those powers is more appropriate.

4.78 Under the Commissions of Inquiry Act 1908, witnesses and counsel are protected by the same immunities and privileges that they would have before the courts. Commissioners are also protected under the Act.

4.79 Commissions of inquiry may refer disputed points of law for determination by a court.

4.80 Commissions of inquiry usually hold open hearings with public and media access, but may restrict access as the need arises. The inquiry's terms of reference may also limit public access. Commissions of inquiry are not subject to the Official Information Act 1982.

Establishing a statutory commission of inquiry

4.81 A Minister must consult the Prime Minister and the Attorney-General when assessing whether to establish a commission of inquiry, prior to submitting any proposal to Cabinet. Cabinet papers proposing commissions of inquiry or royal commissions of inquiry are often joint papers from the portfolio Minister and the Minister of Internal Affairs, as Minister responsible for the Commissions of Inquiry Act 1908. More than one Cabinet paper may be required during the establishment of an inquiry. The Cabinet paper(s) should address the matters covered in paragraphs 4.83 - 4.90.

4.82 Further guidance on the process for obtaining Cabinet approval for the establishment of a commission of inquiry is contained in the Department of Internal Affairs publication Setting up and Running Commissions of Inquiry.

Subject of inquiry

4.83 Legislation does not substantially limit the matters that commissions of inquiry can consider. An inquiry may be established to inquire into a matter of policy or a matter of conduct, or into an issue that requires consideration of both policy and conduct. A conduct inquiry should not usually be appointed, however, where an existing body has jurisdiction to carry out the investigation. While it is appropriate for inquiries to investigate instances of impropriety, they should not cut across the role of the police or the role of the courts in determining criminal or civil liability.

Purpose of inquiry

4.84 The purpose of an inquiry may include:

1. establishing facts or developing policy;
2. learning from events;
3. providing an opportunity for reconciliation and resolution;
4. holding people and organisations to account.

Terms of reference

4.85 Terms of reference can be used to give direction or place restrictions on the inquiry, and give specific procedural directions not set out in the Commissions of Inquiry Act 1908. The terms of reference should be precise and yet sufficiently flexible to allow the inquiry to respond to issues that come to light in the course of the inquiry.

4.86 The relevant agencies should be consulted on the terms of reference, along with, ideally, the proposed commissioner or inquirer, and directly interested or involved persons. The warrant that includes the terms of reference is drafted by the Parliamentary Counsel Office.

Appointment of inquirer or commissioner

4.87 The Commissions of Inquiry Act 1908 does not specify any requirements about the number or expertise of inquirers. Nonetheless, decisions about the appointment of commissioners or inquirers are fundamental to an inquiry's success. The commissioners or inquirers should be people whose expertise best suits the subject matter and purpose of the inquiry. Where an inquiry will involve hearings and lawyers, legal experience may be essential. If it is proposed that a sitting or retired judge be appointed, the Attorney-General must consult the Chief Justice. If the nominated appointee is a sitting judge, the relevant Head of Bench should also be consulted.

4.88 Depending on the size, complexity, and likely length of an inquiry, more than one inquirer can be appointed. Where more than one inquiry member is appointed, members should have skills and experience that complement each other. If one inquirer is unable to continue, the remaining inquiry members should still have the broad skills required to complete the task. Fees for commissioners are set under the fees framework set out in Cabinet Office circular CO (06) 8 Fees Framework for Members of Statutory and Other Bodies Appointed by the Crown.

Budget and time frame

4.89 The budget for a commission of inquiry should allow for the commission to have access to discrete resources and, in most cases, a secretariat established for the purpose of the inquiry. Commissions of inquiry are usually funded from Vote Internal Affairs. The Treasury and the Department of Internal Affairs should be consulted on the budget. Realistic time frames should be set, to acknowledge that the scope of the issues may not be clear until considerably further along in the process.

4.90 Commissions of inquiry must be fiscally accountable. The Department of Internal Affairs or the administering department, as appropriate, will establish the process for monitoring the budget and the reporting time frame for inquiries.

Ministerial inquiries

4.91 A Minister may establish a non-statutory inquiry. In order to do so, the Minister should seek the Prime Minister's agreement to the matters referred to in paragraphs 4.83 - 4.90, and advise Cabinet as soon as possible of these details.

4.92 Ministerial inquiries have no coercive powers. The immunities and privileges of the people involved - inquirers, lawyers, and witnesses - are not protected by statute.

Standing bodies with inquiry powers

Statutory bodies

4.93 A wide variety of statutory bodies have powers to inquire into events or issues. Examples include the State Services Commissioner, the Ombudsmen, the Auditor-General, the Law Commission, the Health and Disability Commissioner, and the Independent Police Conduct Authority. Some inquiries may be initiated by a statutory body; in other cases, a Minister may ask a statutory body to investigate certain issues.

4.94 Before a commission of inquiry or ministerial inquiry is established, consideration should be given as to whether any of these existing bodies can more appropriately conduct the inquiry. Factors to consider will be the size and complexity of the matter at hand, and the capacity of the body to conduct the inquiry within its existing resources.

4.95 In some circumstances, consideration should be given to whether it may be more appropriate to refer information to the police or to another investigative agency.

Select committee inquiries

4.96 A select committee may hold an inquiry within its subject area. After considering evidence and advice, a committee may report to the House with its conclusions and recommendations, which may be addressed to the government. The government must respond to such recommendations within 90 days. See paragraphs 7.108 - 7.111 for more information on government responses to select committee reports. Select committee powers and natural justice procedures are set out in the chapter on select committees in the Standing Orders.

4.97 A select committee inquiry is usually initiated by a select committee and is likely to focus on scrutinising a specific area of government activity. The House may, however, refer a matter to a select committee for inquiry, particularly where the matter is outside the committee's normal subject area.

4.98 Issues suitable for a select committee inquiry are likely to be those which would benefit from input from a wide range of interested groups and the general public, and on which the holding of an inquiry would have support from a number of parliamentary parties. Other matters to consider include the expertise and resources of the committee, and its legislative or other competing workload.

4.99 If a Minister considers that an issue may be suitable for a select committee inquiry, the Minister should first discuss the issue with the Prime Minister and the Leader of the House. If this course of action is agreed, the Minister may, after consulting other parliamentary parties, write to the select committee chair inviting the committee to initiate an inquiry. Alternatively, the Minister may, by motion, seek to have the matter referred by the House to the select committee. Occasionally the House may establish an ad hoc select committee to conduct an inquiry.