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Commissions of inquiry

by Alan Simpson

From the Erebus air disaster to the collapsed buildings in the 2011 Canterbury earthquake, from Auckland city governance to contraception and abortion – commissions of inquiry have covered a host of different subjects. The recommendations of these independent inquiries can be highly influential.


Functions, power and legal status

A commission of inquiry is one of many bodies available to the government to inquire into various issues. Commissions report findings, give advice and make recommendations. While their findings are not legally binding, they can be highly influential. Commissions of inquiry have been a feature of New Zealand’s governmental processes since the mid-19th century.

Commissions of inquiry are independent of the government. They must act strictly within their terms of reference and ensure their processes are within the law.

Commissions are a remarkably flexible means of looking into a wide range of situations. As part of the governmental process they provide a unique channel through which interested parties can directly participate in making public policy.

Commissions may be appointed to:

  • investigate accidents where there has been major loss of life
  • consider social policy initiatives with a big public impact
  • make adjustments to the institutional structure of government
  • take a sensitive or moral issue out of the political arena in order to get non-partisan, professional advice on it and build a consensus on how to proceed.

Forms of inquiry

Various forms of inquiry have developed over the years for different parts of government. These include:

  • statutory commissions of inquiry (such as the 2011 Royal Commission on the Pike River Coal Mine Tragedy)
  • ministerial inquiries (such as the inquiry into the Auckland power-supply failure in 1998)
  • standing statutory bodies (such as the Waitangi Tribunal, established in 1975)
  • parliamentary committees (such as the Primary Production Select Committee in 2011).

Commissions of inquiry

Statutory commissions of inquiry are appointed by the governor-general on the advice of the government. They operate under the Commissions of Inquiry Act 1908, and are independent of government, but receive administrative assistance from the Department of Internal Affairs. They are the highest level of inquiry available to government.

Independent advisors

A formal inquiry was held in New Zealand in the 1860s to decide the best site for the capital on the shores of Cook Strait. The members of the inquiry were all members of Parliament from the Australian colonies – New Zealanders apparently agreed that they themselves were all too biased on the issue of the appropriate place.

Commissions and royal commissions

Royal commissions and commissions of inquiry are virtually the same thing and there are no differences in their purposes, functions, procedures and effects. The main difference is that a royal commission begins with a greeting from the sovereign. Royal commissions are commonly seen as having greater prestige and standing than commissions of inquiry, but both are appointed under the Commissions of Inquiry Act 1908.

The term ‘royal’ may add some prestige to a commission, and the government may use it to give weight to an inquiry. It may also be used to encourage prospective commission members to participate. The distinction between royal commissions and commissions of inquiry appears to be unique to New Zealand.

Governments are not bound to follow the advice and recommendations of a commission. However, if a government disregards a commission’s report it risks voter displeasure, reluctance of prospective commissioners to be involved in the future, and public distrust.

Committees of inquiry (ministerial inquiries)

Committees of inquiry are appointed by ministers and are also called ministerial inquiries. They have been used regularly, and for substantive issues, such as education in 1962, taxation in 1967, urban passenger transport in 1970, treatment of cervical cancer in 1988, and many others.

Tribunals

Tribunals are permanent committees appointed under their own legislation – for example, the Copyright Tribunal, set up under the Copyright Act 1994. Tribunals consider issues and disputes that arise from the application of legislation.

Attitudes towards commissions

Some people take a cynical view of commissions of inquiry, seeing them as an excuse for the government to do nothing. Others think that governments do not pay much attention to commissions anyway, and that commissions are appointed to delay action or to recommend a course of action that the government plans to follow anyway.

However, commissions of inquiry are generally seen in a positive light. They allow major interests to take part in the inquiry process and so help secure acceptance of the outcome. They allow relatively novel proposals to be made in a form that the government can decide to accept or reject, depending on public reactions. They help educate public and group opinion through continuing dialogue that takes place while the inquiry proceeds, and through their reports.


Commissions over time

19th-century commissions

The first New Zealand commission was appointed in 1855 by the Nelson Provincial Council, and recommended a system of secular primary education. The Canterbury Provincial Council appointed a similar commission in 1863. The first central government commission was in 1864, and in 1867 the Commissioner’s Powers Act was passed. It applied to boards or commissions appointed by the governor. Commissions of inquiry had the power to summon witnesses, examine them under oath, pay their expenses and require them to produce any relevant documents. Perjury (lying) was punishable. These powers were expanded by 1872 amendments.

Commissions of Inquiry Act 1908

Earlier legislation was repealed by the Commissioners Act 1903, which for the first time specified what commissions of inquiry could be set up for. A 1905 amendment empowered judges appointed as commissioners to exercise the powers available to them as judges of the Supreme Court. All this legislation was consolidated in the Commissions of Inquiry Act 1908. A century later it had been amended seven times and was seen as out of date. In 2008 the Law Commission reviewed the 1908 Act and recommended a new inquiry act to replace it. However, in 2011 commissions still operated under the 1908 act.

Use over time

Commissions of inquiry were used extensively for a wide range of issues in the 1910s, 1920s, 1950s and 1970s. However, few were appointed in the 1930s, 1990s and 2000s.

1930s to 1950s

From 1932 to 1941 there were only two commissions of inquiry and two royal commissions appointed, as the government wrestled with the economic depression and high unemployment, and moved to introduce the welfare state.

In the post-war period a higher number of inquiries were appointed – 18 in the 1940s and 23 in the 1950s. The country dealt with matters that had been deferred during the war, addressed the return to economic activity (including the waterfront labour dispute of 1951) and developed plans for the future.

Litany of lies

One of the country’s highest-profile commissions of inquiry was that into the Air New Zealand flight which crashed on Mt Erebus in Antarctica in 1979. Judge Peter Mahon, the single commissioner, claimed that the Air New Zealand management had conspired to whitewash the inquiry and mislead investigators through 'an orchestrated litany of lies'.

1960s to mid-1980s

In the 1960s there were fewer inquiries. There was a relative low of 14 during the 1960s, but by the late 1960s and early 1970s more inquiries were being appointed. In his nine years as prime minister from 1975 to 1984, Robert Muldoon made extensive use of inquiries – 25 commissions of inquiry were established under his premiership.

Mid-1980s onwards

The fourth Labour government, elected in 1984, initially appointed a number of commissions of inquiry but soon shifted its focus to major legislative and government machinery changes. Economic policy, rather than the commission-of-inquiry process, was the preferred vehicle for the wider reforms, including cuts to the welfare state.

Fewer commissions of inquiry have been appointed since the mid-1980s. The 2008 Auckland governance royal commission and the 2011 Pike River coal mine tragedy royal commission are two very different contemporary examples. Both issues fell beyond the scope of normal parliamentary and governmental provisions. There needed to be an opportunity for full public participation.


Conducting inquiries

Legal background

Since the mid-1930s the chairs of commissions have typically had strong legal backgrounds. Prior to the 1930s, only half the chairs came from a legal background. While this can be important in the conduct of many inquiries, commissions are not courts of law. They have far greater scope for creating an environment in which deeper understanding of the issues can be gained, and parties in conflict can be helped to resolve their differences. Being free from particular legal customs and interpretations of due process and order is one of the many strengths of the commission process. The chair has a key role in ensuring an ordered and thorough inquiry.

Information gathering

Commissions of inquiry gather information, usually in public, from a wide variety of sources – the commission itself, the major groups concerned with the subject matter, and the commission’s hearings and research. Some commissions accumulate a considerable body of information, as happened with the 1969 social-security commission. Reports are rarely more than one volume, and present the commission’s deliberations, findings and recommendations.

Radical advice

Some commission of inquiry reports are radical in their breadth and scope. For example, the 1966 accident-compensation commission of inquiry recommended far-reaching reforms, which led to the establishment of the Accident Compensation Corporation (ACC). The 1986 electoral-system commission also recommended significant changes which were largely implemented (including the adoption of mixed-member proportional representation). A commission’s terms of reference specify the scope of its work and the related issues. Some commissions are presented with a broad brief, while others are narrowly focused.

A motley crew

In 2008 the Law Commission (a permanent body which reviews the law and legal processes) struggled to categorise past commissions of inquiry, commenting that they ‘come in such a bewildering variety of shapes and sizes that it is difficult to characterise them in any systematic way.’1

Number of commissioners

Since 1909 the number of commissioners appointed has ranged from one to 12, with an average of three. Smaller commissions of three to five members are generally more readily managed and more effective than the larger commissions.

Large commissions

The 1909 timber and timber-building industries commission had 11 commissioners, the 1930 workers’-compensation commission had nine, and the 1944 apprenticeship and related matters commission had 12. These larger commissions aimed to ensure that the main parties were represented so all would agree to the commission’s report. However, it did not necessarily work like that. The eight-member 1945 licensing royal commission did not produce a unanimous report. Minority reports, where commissioners disagreed with one another, occurred more frequently with smaller commissions of inquiry, particularly those into accidents and disasters, land issues, and economic and industrial issues.

Since 1980 the largest commission has been the six-member royal commission on social policy in 1986–88. The 1986 electoral-system royal commission had five members, and the 2001 genetic-modification royal commission had four members. These were major policy issues of their time.

Small commissions

For those commissions with more limited terms of reference, one to three members are common. The 1980 commission on taxation of travelling allowances had just one member. So did the 1980 Erebus commission (inquiring into the 1979 air crash in Antarctica), the 1995 Cave Creek commission (examining the fatal collapse of a platform in Paparoa National Park), the 1997 winebox commission (on issues of corruption relating to taxation) and the 2007 police conduct commission. Others, such as the 1980 freight forwarding industry commission and the 1982 air traffic control commission, had a more typical three members.

Other staff

Members generally work full-time on commissions while they are in progress. Additional staff are appointed to assist the commission – a secretary to deal with administrative matters, shorthand and clerical staff, legal counsel (usually drawn from the Crown Law Office), research staff and specialist advisers, depending on the issue before the inquiry. Commissions are also able to draw on specialist assistance as required.

Footnotes
  1. A new inquiries act. Wellington: New Zealand Law Commission, 2008, p. 4. Back

Commissions of inquiry, 1980s to 2011

Less frequently used

The use of commissions of inquiry has changed since the late 1980s. While many issues demand the government’s attention, its capacity to address issues has also developed considerably. A wide range of issues previously referred to commissions are now no longer the subject of formal inquiries, but are dealt with directly by government organisations.

Expensive winebox

Commissions of inquiry can be very costly. The most expensive up to 2011 was the 1997 Commission of Inquiry into Certain Matters Relating to Taxation (often called ‘the winebox inquiry’, as MP Winston Peters brought key documents to Parliament in a winebox). The commission ran for nearly three years and cost taxpayers over $10 million. Wider costs, including legal expenses, added millions more to the bill.

Since the mid-1980s major policy developments have been driven by a succession of strong and determined ministers. With the economic and governmental reforms of the 1980s and 1990s came legislation enabling government departments to undertake their own inquiries. In the 2000s the government had an extensive array of devices to embark on inquiries other than through the formal commission-of-inquiry process.

Local-government reforms in the 1980s gave local authorities the capacity to address the issues of their communities rather than await the report of a commission of inquiry.

The introduction of the mixed-member proportional representation electoral system in 1996 led to a greater reliance on negotiating policy issues with coalition or affected parties rather than embarking on a commission of inquiry to remove a troublesome area from a government’s agenda.

Waitangi Tribunal

The establishment of the Waitangi Tribunal in 1975 was another of the major changes affecting the use of the commission of inquiry. An extension of its powers in 1985 enabled the tribunal to consider alleged Crown breaches of the Treaty of Waitangi since 1840, allowing it to deal with many issues that were earlier considered by commissions of inquiry.

A valuable tool

Commissions of inquiry are a valuable mechanism in a government’s arsenal of public, independent, structured bodies to use at the appropriate time. Issues can arise at any time and be referred to commissions of inquiry, such as the methane explosions at the Pike River coal mine in November 2010, which led to a royal commission of inquiry being established in December 2010. A royal commission was also established to look into building failure in the Canterbury earthquake of February 2011.

Commissions of inquiry are political and administrative devices that governments will continue to use, especially when they need an independent view.


External links and sources

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How to cite this page: Alan Simpson, 'Commissions of inquiry', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/commissions-of-inquiry/print (accessed 19 April 2019)

Story by Alan Simpson, published 20 Jun 2012