The Royal Commission of Inquiry is the most prestigious instrument of investigation available in New Zealand and is reserved for the most serious or complex issues: the Erebus crash (1979), the move to proportional representation (1986), social policy (1988), the ‘Wine Box’ (1994), the Cave Creek disaster (1995), genetic modification (2000), the ‘Super City’ (2007) and – now – the Pike River mining tragedy.
This Brief Counsel examines the legislation that empowers such a Commission, the roles and responsibilities it imposes, and the treatment of Commissions of Inquiry in the New Zealand courts.
The Royal Commission will be chaired by Justice Graham Panckhurst, a sitting High Court judge. Two other Commissioners with relevant expertise in mining and safety regulation will also be appointed.
The Draft Terms of Reference for the Pike River Inquiry
Cabinet is responsible for setting the terms of reference (TOR) for any inquiry.
According to the Cabinet Manual, “[t]erms 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.”
The draft TOR (released on Monday 29 November) for the Pike River inquiry are deliberately broad and provide the Royal Commission with wide latitude. For this reason, the Royal Commission will likely have a profound effect on the mining industry in New Zealand.
Prime Minister John Key has announced that the Royal Commission will inquire into and report (making any recommendations it thinks fit) on:
the cause of the explosion in the Pike River Coal Mine on 19 November 2010 and the cause of the explosion on 24 November 2010
the cause of the loss of life of the men working in the mine
the general law (including any specific legislation and regulations), systems, processes, practices and procedures which govern health and safety in underground coal mining and related operations, and how these compare to relevant international jurisdictions
the nature and effectiveness of the systems, processes, practices and procedures in place at the mine for or related to its operations, management, and safety
the administration and implementation (including resourcing) of any relevant legislation, regulations and their associated systems and processes in relation to the mine and the land in which it is situated, including the interaction between other regulatory requirements (such as environmental and conservation) and health and safety, and how these compare to relevant international jurisdictions
the systems, equipment, and other resources available for, and the conduct of, any search, rescue, and recovery operations (including preparedness therefore), undertaken after the explosion on 19 November 2010, and
any other matters arising out of, or relating to, the foregoing that come to the Commission’s notice in the course of its inquiries and which it considers it should investigate.
The Royal Commission may also make recommendations:
for the prevention, as far as possible, of similar disasters and for the safe working of this and other mines in the future
if it is unlikely that the mine will be re-opened, on what ought to be done to ensure the safety of the area
in relation to decision-making, systems and processes for search, rescue and recovery operations in similar disasters, and
whether any changes or additions should be made to relevant laws, systems, processes, practices and procedures.
The Commission of Inquiry Act 1908
Royal Commissions of Inquiry are appointed by the Governor-General under Clause X of the Letters Patent Constituting the Office of the Governor-General of New Zealand 1983. This distinguishes them from Commissions of Inquiry which are established simply by Order in Council. That is, however, where the difference between the two Commissions ends, as both have the same powers, functions, privileges, and immunities.
Section 2 of the Commission of Inquiry Act (the Act) empowers the executive, by Order in Council, to “appoint any person or persons to be a Commission to inquire into and report upon any question arising” in a number of different circumstances. These include the administration of the Government, the working of existing laws, and the conduct of officers of the Crown. Relevantly to the Pike River disaster, inquiries can also be ordered into “any disaster or accident… in which members of the public were killed or injured or were or might have been exposed to risk of death or injury”.
Under the Act, any person who satisfies the Commission that they have an interest in the inquiry (distinct from the general public interest) is entitled as of right to appear and be heard by the Commission. The question of whether a person has such an interest is a question of fact for the Commission to decide. The right to be heard also applies to any person whose interests may be adversely affected by any evidence given before the Commission. Historically the right to be heard has been interpreted very broadly.
The Commission enjoys broad powers of investigation under the Act, including the ability to summon witnesses and to order the production of any relevant documents or records. It is an offence against the Act to refuse to attend in accordance with a summons, to fail to produce any required document, or to wilfully obstruct or hinder the Commission in inspecting or examining documents. It is also possible to be held in contempt of the Commission.
The Commission may receive any information it considers will assist it, including hearsay evidence of a type not admissible in a Court of law. It is relevant to note, however, that all privileges that exist in relation to witnesses and evidence in a Court setting, such as legal professional privilege, apply equally with regard to a Commission.
The Commission may refer any disputed point of law that arises in the course of the Inquiry to the High Court for binding resolution.
Where the executive appoints a Judge or retired Judge of the High Court as a Commissioner, any order made by a Commission may be filed in the High Court and then enforced as though it were a civil judgment.
The legal principles applicable to Commissions of Inquiry
A Commission of Inquiry regulates its own procedure, guided by the terms of reference provided to it by the executive. Sometimes oral hearings are held and in others evidence is considered on the papers. Notwithstanding this autonomy, however, the principles of natural justice apply to Commissions of Inquiry, and decisions of the Commission are amenable to judicial review.1 Considerations of natural justice are likely to be considered of heightened importance in the investigation of a disaster, as opposed to a matter of policy or legislation.
An example of this is in practice is that natural justice requires that a person has the right to contradict or controvert adverse testimony, a component of the right to be heard. It will be up to the Commission to determine how this will right will be exercised; whether through cross examination or otherwise.
The Cave Creek Commission of Inquiry
On 28 April 1995, a viewing platform above Cave Creek, near Punakaiki on the West Coast, collapsed, causing the deaths of 14 Polytechnic students. The Government of the day ordered a Commission of Inquiry, appointing Judge Noble of the Christchurch District Court as sole Commissioner. The Commission comprised one executive officer as well as four administrative staff. Legal counsel assisted the Commission, and also represented the parties to the Inquiry.
The Commission was appointed on 8 May 1995. Its terms of reference were initially limited to matters that occurred before the collapse. On 3 July those terms were expanded to encompass matters that occurred after the collapse as well. This split led to the Inquiry occurring in two phases. The hearing for the first part ran from 11 July to 16 August, and for the second from 12 September to 22 September. On 9 October, submissions in response were received for both parts. The final Report was submitted to the Governor General on 10 November 1995.
In the first part of the Report the Commissioner concluded that there was one proximate cause of the collapse, notably that “the platform was not constructed in accordance with sound building practice”, leading to a “total and catastrophic failure”. The Report also found a number of secondary sources of collapse, including faults in the design, construction, compliance with statutory requirements, and inspection of the platform. The Commissioner recommended a number of changes, both to legislation and to Department of Conservation practice, to avoid such a tragedy recurring.
In the second part of the Report, the Commissioner provided a detailed narrative of the collapse, the rescue effort, the identification of the deceased and the notification of their families. He made both criticisms and recommendations for improvements in the future.
Reading the Cave Creek Report, it becomes clear that Royal Commissions of Inquiry, such as the one contemplated for the Pike River disaster, are difficult and painful undertakings for all involved. Equally, however, it is clear they are an important means of determining as accurately as possible what occurred and why, both for the families of the victims and also for the lessons that can be learned to prevent such tragedies happening in the future.
Our thanks to Michael Dobson, Solicitor, and Armando Neris, Summer Clerk, for writing this Brief Counsel. For further information, please contact the lawyers featured.