Lawyers have growing concerns about the absence of a public inquiry into the Whakaari eruption as its anniversary approaches.
Twenty-one people died after the explosion at the submarine volcano, off the Bay of Plenty coast, on December 9 last year.
Documents previously released under the Official Information Act show the Department of Internal Affairs gave ministerial advice opposing an immediate public inquiry, and new documents released from the Ministry of Business, Innovation and Employment [MBIE] show MBIE staff did the same, stating it would "risk" undermining the current WorkSafe and police investigations.
But a second Queen's Counsel lawyer has now spoken out about the lack of an inquiry.
The Government held a Royal Commission of Inquiry into the Pike River Mine disaster in 2010, the Christchurch earthquake in 2011 and the Christchurch mosque shootings last year. All were run alongside investigations by other agencies such as the police.
But so far Prime Minister Jacinda Ardern has said a decision about a Whakaari / White Island inquiry will not be made until after the current police and WorkSafe investigations are done.
Hugh Rennie QC disagrees with the approach.
He has more than 40 years' experience conducting and representing groups in Crown and ministerial inquiries, including time chairing a ministerial inquiry in 1998.
In his opinion: "We are now 11 months on from this disaster and it will be getting harder every month to get a fair, independent, comprehensive inquiry."
Public inquiries are normally appointed by the Governor-General after discussions between ministers and officials, with advice from Crown Law and the State Services Commission.
"The point of an inquiry is to take an overall, independent, higher-level look at what happened and why," he told NZME.
"Delay is prejudicial to any inquiry's ability to obtain accurate information, secure key physical evidence, and ensure that a full understanding of the disaster is obtained."
He said the Inquiries Act, last updated in 2013, "expressly provides for inquiries to be established and carried on while other actions (such as regulatory or prosecution action) are going on".
"The issues at White Island are not confined to local authority issues," Rennie added.
"They include safety, marine and land operations, rescue, risk management and monitoring and other matters for which other Crown entities are responsible.
"There are major issues of public interest not captured within the low-level Crown activities which have been going on for months," he said.
Rennie's comments are in line with views expressed by QC Nigel Hampton in August.
Hampton believed without a Royal Commission of Inquiry nobody would "scrutinise and critically consider the overall potential failings" around the eruption.
A New Zealand disaster law academic also said a public inquiry was a "necessity" and the National Party announced it would launch a Royal Commission of Inquiry if elected to government.
But Government documents previously released to NZME showed Department of Internal Affairs staff had told then Internal Affairs Minister Tracey Martin it was "highly undesirable to set up an inquiry in parallel to regulatory/criminal investigations".
A new ministerial briefing released under the Official Information Act shows similar advice was given in January to then Workplace Relations and Safety Minister, Iain Lees-Galloway,
"If ministers decided to commission an independent inquiry, our advice is that the appropriate timing would be after the investigations are completed," MBIE staff reported in the briefing.
It said if existing investigations or a policy review suggested there were "systemic failures of institutions or regulatory approach" at Whakaari, then "more independence may be important to maintain public confidence and manage conflict of interest".
MBIE health and safety policy manager Lisa Collins told NZME "at this stage, we think the Coronial inquiry and WorkSafe investigation are well-placed to thoroughly analyse what happened".
"The Government's wider, agency-led work will address some of the additional questions."
This work includes an MBIE internal review into health and safety regulations for adventure activities, development of a Department of Conservation framework to manage visitor risks at Tongariro National Park, and a Department of Internal Affairs review of the management of offshore islands and future access to Whakaari / White Island.
"It is worth noting that WorkSafe has significant investigative powers, giving them unfettered access to a wide range of documentation and people involved," Collins said.
"A formal inquiry is not an indication of the seriousness of a tragedy, but an avenue to consider in situations that are, for example, highly complex or where regulators may not have sufficient powers."
The outcome of WorkSafe's investigation into whether health and safety laws were breached at Whakaari / White Island is expected in the next fortnight.
WorkSafe has had 25 full-time staff and two part-time staff completing the investigation this year.
As of this month, there were six police staff permanently deployed on Operation Whakaari / White Island, on behalf of the Coroner, and a Detective Superintendent and Detective Inspector providing oversight.
• A public inquiry is normally decided upon after discussions between ministers and officials, with advice from Crown Law and the State Services Commission as required.
• Public inquiries are appointed by and report to the Governor-General, and the inquiry report is tabled in Parliament.
• A Royal Commission of Inquiry is the most serious type of public inquiry available to the New Zealand Government.
• They involve matters of great importance and difficulty, focusing on fact-finding how a situation came about and recommending policy or legislative changes to prevent it happening again.
