Public inquiries - Accountability + Transparency

Public inquiries vs Ombudsman

• Sometimes the Ombudsman [deals with smaller inquiries] is not enough (where there's been significant impact on the public or in disaster situations)

What is a public inquiry?

• An official investigation [by the state] into an event or matter - usually one that has caused public concern or has the potential to cause public concern.

• We are not concerned with broad 'inquiries' into particular topics

  • Eg inquiries made by select committees; internal inquiries made by departments, Ombudsman investigations.

• But we are concerned with public inquiries initiated under the Inquiries Act 2013 (the majority of inquiries in NZ)

• Not all inquiries that the Govt conducts are public inquiries (eg 'broad inquiries' as stated above)

Public inquiries could be about anything (as wide as the powers of the state) (subject matter is as wide as the powers of the state)

Purpose of an inquiry

• Establish facts or develop policy

  •  (see what happened [often facts aren't ascertained] see whether the procedures in place failed or succeeded),

• Learn from, or prepare for, events

  • (Govt will take recommendations, implements them, and prevent disasters or the issue happening again = improving our government structures to ensure the issue doesn't reoccur)

• Provide an opportunity for reconciliation and resolution

  • (failure by the Govt = lesser confidence in the state, allows the state to prove that they can protect our interest and thus regain trust of the public)

• Hold people and organizations to account

  • Able to identify whether the issues lie at a systemic level [usually law/policy] or whether it was an individual's fault.

  • Talking about political accountability and facing proper political sanctions -> not civil or criminal liability.

When is an inquiry typically called?

• Inquiries tend to be called in response to events; (public notice when things go wrong, no need for inquiry when it's going all ok)

  • Learn lessons from previous failings to ensure that the same issue does not reoccur

  • Not just about accountability, but also an opportunity for reflection and improving governance

• Some inquiries can be prospective;

  • Eg Royal Commission for Auckland - regarding local and regional government arrangements

    • One's that have potential to cause public concern in the future.

What act governs inquiries nowadays?

Inquiries Act 2013

Types of inquiries (and section which establishes them)

section 6 of the Inquiries act 2013:

1) Royal Commission

2) Public Inquiry

3) Government Inquiry

Note; other forms do exist [ see Cabinet Manual [4.78]-[4.124]

Royal Commission

• ‘highest form’ of inquiry

• Reserved for the most serious matters of public importance

• Procedure and powers are identical to public inquiry

• Established by Governor General

Public inquiry

• Established by the GG by Order in Council

• Matter may require public inquiry when it ‘pertains to a particularly significant or wide-reaching issue that causes a high level of convern to the public and Ministers’

Government Inquiry

• established by Ministers by notice in NZ Gazette

• Intended to deal with smaller and more immediate issues.

Establishing the Inquiry

• Under s 7(1), when establishing an inquiry the state must:

  • Specify the matter of public importance that is the subject of the inquiry; and

  • Name the person(s) appointed to be members of the inquiry; and

  • If more than 1 person is appointed to the inquiry, name the person who is to be the chairperson of the inquiry (typically a judge) (it is rare that an individual person is the panel, usually need another at least for administration etc to get the best result); and

  • Specify the date when the inquiry may begin considering evidence.

Terms of reference in an inquiry

• Inquiries also require terms of reference, which is made by the individual initiating the inquiry (potentially consulting with the inquiry panel) [Section 7(2)- 7(4)

• The terms of reference sets out;

  • Matters relevant to the scope and subject of the inquiry (Sets out subject matter, if the panel go outside their remit it can be challenged in a court of law.)

  • Relevant procedural or administrative matters (including reporting date)

  • Must strike a balance between going wide or narrow. Going wide means it can go over budget and run longer than anticipated and recommendations become outdated.

  • Ministers may update terms of reference during the process

The role of the public in inquiries

• Public is unlikely to oblige the state, as a matter of law, to conduct an inquiry

  • Unless the state promised that an inquiry would take place (promise can be relied on): Re Finucane's application for Judicial Review [2019] UKSC 7 - judicial review and legitimate expectations (Mr Finucane was murdered by paramilitary- Government had promised his wife they would do an inquiry into his death, can be relied on); where situations change, the Gov can resile the promise but must be justified on sufficient policy grounds.

• The public can challenge the terms of reference and its interpretation of that reference

  • Christian Congregation of Jehovah's Witnesses (Australasia) Ltd v Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions [2024] NZCA 128

  • Inquiry panel interpreted terms of reference to include JW. JW didn’t think that they were relevant because they never subsumed care for the people.

  • CA said; courts have jurisdiction to assess whether they have gone beyond the terms of reference however in this case the interpretation adopted was justified, 2nd  the  judicial review challenge had been  taken over terms of reference which included JW. Ministers can resolve Terms of Reference to avoid ambiguity.

• A practice of asking for public feedback on terms of reference

• The public is also invited to contribute to public inquiries; because we have experienced them

  • Invitations to be interviewed (e.g. June-August 2024 the Covid-19 inquiry interviewed bereaved family members in Dunedin)

  • Open public submissions (e.g. experiences during COVID-19 lockdown)

• Viewed as a positive aspect of public inquiries - but is it wholly positive?

  • Are all public experiences relevant (what happens when people like conspiracy theorists get involved? Don't want them to overtake the inquiry)

  • Representation within public consultations (over-representation of older people, north island etc Not always fully representative of NZ as a whole = some experiences are just not heard) - people need to know about it to submit to it.

 

Re Finucane's application for Judicial Review [2019] UKSC 7

Held: Public is unlikely to oblige the state, as a matter of law, to conduct an inquiry

• Unless the state promised that an inquiry would take place (promise can be relied on

(Mr Finucane was murdered by paramilitary- Government had promised his wife they would do an inquiry into his death, can be relied on); where situations change, the Gov can resile the promise but must be justified on sufficient policy grounds.

• Christian Congregation of Jehovah's Witnesses (Australasia) Ltd v Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions [2024] NZCA 128

• The public can challenge the terms of reference and its interpretation of that reference
  Inquiry panel interpreted terms of reference to include JW. JW didn’t think that they were relevant because they never subsumed care for the people.

• CA said; courts have jurisdiction to assess whether they have gone beyond the terms of reference however in this case the interpretation adopted was justified, 2nd  the  judicial review challenge had been  taken over terms of reference which included JW. Ministers can resolve Terms of Reference to avoid ambiguity.

Inquiry Procedure + related sections

• Inquiry panel can conduct the inquiry as it sees fit (s 14(1))

  • Within limits/constraints of its terms of reference, natural justice concerns and the need to avoid unnecessary costs or delays

• This includes;

  • Limiting public access to the inquiry (s 15) - including the publication of inquiry proceedings- after considering a range of interests listed in the Inquiries Act 2013 (typically want them to be public but if it's better of private etc)

  • Postponing or suspending the inquiry (s 16) (if their inquiry is going to be disruptive to other investigations by the police for example)

  • Inquiry panels can; Conduct interviews, summon witnesses, hold hearings in the course of its inquiry, receive evidence or submissions, including evidence under oath, allow or restrict cross-examination of witnesses, (sections 14(4), 19-21)

How are inquiry powers enforced?

• These powers are enforced via s 29, which makes it an offence to not respond to summons from an inquiry, ignore orders from inquiries or generally disrupt inquiry proceedings

  • Fine up to 10K, usually enough, but how big does the penalty need to be to ensure that the Rich actually do go instead of just paying the fine.

Outcomes of inquiries

• Every inquiry must prepare and publish a final report and present it to the individual (Minister of the relevant subject matter [typically]) that initiated the inquiry (s 12(1))

  • Final report must set out the inquiry's findings and recommendations (s 12(2)) - this report cannot determine civil or criminal liability ( s 11) [can be used as evidence]

  • Must be presented by appropriate Minister to the House of Representatives

• The findings and recommendations of inquiries are advisory only - the state is not obliged to implement any recommendations

  • Pros + cons to this

Non-Statutory inquiries

• Inquiries Act 2013 = statutory inquiries = majority of inquiries

  • Can summon witnesses and take evidence under oath

  • Must operate within the bounds of inquiries Act 2013

• Non-statutory inquiries (by Ministers);

  • Cannot summon witnesses and take evidence under oath (sometimes no summoning makes it less adversarial, they are here on their own will -> sometimes preferred)

  • Greater flexibility: not subject to legislative regime

• Most if not all inquiries will operate under the Inquiries Act 2013