Inquiries Act strikes harmony in Parliament's choir
In late August something happened during the third reading debate on a humble but important bill, which even MPs acknowledged was rare. Those members who took calls to speak to the bill, spoke for it, and by and large, (except for some minor gripes from New Zealand First), supported its passage into law in the form in which it was presented by its presiding minister, Chris Tremain. Rare indeed.
That humble bill has now become the Inquiries Act 2013, which replaces most of the Commissions of Inquiry Act 1908. The Commissions of Inquiry Act had itself been amended five times between its own passage into law in 1908 and 1995, and since then was largely neglected. In 2006 the Law Commission was asked to consider a new framework for inquiries, but the process has been slow. The Law Commission (via its responsible minister, Annette King) tabled a report (NZLCR102), in May 2008. This report contained a draft Inquiries Bill, which was introduced by Rick Barker, virtually unchanged, to the House in September 2008. It then went to the Government Administration Select Committee, was reported back in November 2009, and eventually sat on the order paper for nearly four more years.
Enter onto the scene a pipe owned by Fonterra at Hautapu in the Waikato, or rather, the contaminated discharge of said pipe. This provided not only a good enough reason to conduct a ministerial inquiry into whey protein concentrate contamination, but also a prime opportunity to breathe new life into the Inquiries Bill. Enough politicians’ breath was exhaled to see the Bill pass into law on 27 August.
The new Inquiries Act 2013
The new Inquiries Act is not quite free of the old. It repeals only two sections (sections 2 and 15) of the 1908 Commissions of Inquiry Act, which deal with appointment of commissions and the extent of the Act in relation to inquiries. Some 56 statutes (as listed in Schedule 1 of the new Act) still allow numerous agencies to exercise inquiry powers under the 1908 Act, and the 2013 Act will not yet apply to agencies deriving such powers (which were established by other enactments which pre-date the new Inquiries Act). However, this is unlikely to be the case for long, and importantly, most new public inquiries will be administered under the 2013 Act.
Section 6 establishes three types of inquiry. Royal commissions may continue to be established under the authority of the letters patent of the Governor-General, and these will be treated as if they were public inquiries. Public inquiries can be established by the Governor-General by order in council and government inquiries may now be set up by any minister or ministers and must be publicly notified by notice in the Gazette.
Section 7 formalises a hierarchical relationship between the establishment instrument for any inquiry, and its terms of reference; a welcome coverage in legislation of detail once found only in obscure manuals produced by Internal Affairs. This section allows a minister to consult a person appointed to an inquiry, or the chair of an inquiry, before terms of reference are finalised and allows flexibility around the public notification of terms of reference, either in the establishment instrument, or (perhaps after consultation) in the Gazette at a later date. It seems that this change has been introduced to reflect lessons learned from inquiries into Pike River and the collapse of buildings during the February 2011 earthquakes in Christchurch.
Removal and duties of inquiry members
Where the old Act was silent on removal of inquirers from office, section 8 of the new Act is more decisive. A member may be removed from a public or government inquiry for misconduct, incapacity or neglect of duty.
Section 10 directs that an inquiry and its members must act “independently, impartially and fairly”. Section 11 cuts and pastes parts of sections 3 and 57 of the Coroner’s Act 2006, and states:
An inquiry has no power to determine the civil, criminal, or disciplinary liability of
Subsection (1) does not prevent an inquiry, … from making—
(a) findings of fault; or
(b) recommendations that further steps be
taken to determine liability.
Obvious as these provisions may seem, they were absent from the 1908 Act, as was any direction on the appointment of counsel to assist inquiries, which can be found in the new section 13. This allows an inquiry to request the appointment of counsel, but it must have regard to matters such as “the purpose of the Act to enable an inquiry to be carried out effectively, efficiently, and fairly”, as well as the nature of the subject matter and “procedures most appropriate for carrying out the terms of reference.” The Solicitor-General may appoint counsel but must consult the inquiry on the appointee and on terms and conditions of appointment.
Conduct of inquiries
In its report summary, the Law Commission observed that inquiries “tend to adopt legalistic procedures and have become constrained by the culture that has developed around them”.
Sections 14 to 18 of the new Act make the conduct of inquiries extremely flexible with decisions on whether to interview, hold hearings, call witnesses, and even decisions on whether to receive evidence, being left largely to the inquiry itself (section 14(4)). Natural justice principles are a prominent cornerstone of conduct and inquirers must comply with these when deciding on procedure or conduct and when making findings which are adverse to any person (section 14(2)).
Section 17 allows an inquiry to nominate core participants on the basis of their actual or supposed role or interest in relation to the subject matter of the inquiry, or if they may be subject to “explicit or serious criticism during the inquiry or in the report”. Subsection 3 gives core participants the right to make submissions.
Legal assistance was never available to witnesses under the old Act, but section 18 makes it possible for an inquiry to request legal assistance for any person wishing, or being required to, attend proceedings.
Other points to note
Other innovations worthy of note include:
section 22, which enables an inquiry to order the disclosure of evidence presented by one person, to any other person participating in the inquiry, but which prevents orders of general discovery;
section 25, which entitles witnesses and others participating in an inquiry, to claim reasonable costs and traveling expenses;
section 31, which authorises the Solicitor-General to initiate contempt proceedings, either on his or her own initiative, or at the request of an inquiry, in the High Court. (Compare this with the less elegant devolution of the same powers to sitting or retired High Court judges, appointed to commissions, in sections 13b and 13c of the 1908 Act); and
section 33, which makes most (but not all) documents produced or received by inquiries subject to the Official Information Act 1982.
Not the end of the story – possibility for
For any wishing to see the full repeal of the 1908 Act, section 36 may provide some encouragement. This allows the minister responsible to initiate a review “not later than 5 years after the commencement of this Act” in relation to the entities which may still derive powers under the old legislation. Subsection 2 states:
2. The purpose of the review required by this section is to consider whether the remaining provisions of the Commissions of Inquiry Act 1908 can be repealed.
Thus there is some hope for those wishing to see the full repeal of the 1908 Act, but perhaps not for some time yet.