KEY POINTS:
When embarrassments occur in the public service, the Government's response is invariably to set up an inquiry. If Opposition politicians or outsiders suspect something is amiss, they call for an inquiry. When tragedies happen, when an institution seems not to be working as it should, when somebody may
have been wrongly imprisoned, when a major change in public policy is proposed, a formal inquiry of some kind will be constituted.
The Law Commission, itself a standing committee of inquiry set up by Parliament, has been examining the law governing inquiries and offers some useful suggestions. It notes that full-scale commissions of inquiry have become less common in recent years because of their expense, the time they usually take, the formality of their proceedings and the adversarial legal contests they can become.
More modest "ministerial" inquiries have become more common. They are less formal, investigative rather than adversarial, cheaper and quicker. But they lack the powers of a commission to compel people to testify and answer questions and they do not give investigators and witnesses immunity to claims from those blamed. Without these powers, says the Law Commission, they may not be able to get to the root of a problem.
The commission proposes there be two sorts of inquiries, each enjoying the same legal powers and protections but differing in the way they are appointed and proceed. "Public inquiries" reporting to Parliament would replace commissions of inquiry for the more weighty work, and "Government inquiries", reporting directly to a minister, would carry out the simpler and quicker tasks with better legal backing.
Adversarial concepts, such as "parties" and the right to be heard, would disappear, reducing the likelihood of litigation about the inquiry and giving the person or panel conducting it greater discretion within some general rules of natural justice.
The commission proposes that people giving self-incriminating testimony to an inquiry should be given immunity from prosecution not only on their evidence but on any information obtained as a consequence of their evidence. While this seems undesirably broad, it could make investigations more robust and the conclusions more satisfactory.
Too many official inquiries in recent times have ended in reports that studiously avoid pointing the finger at plainly culpable individuals. There is a tendency to prefer findings of "systemic" failure for which nobody is held responsible. The result tends to be that in cases such as the Cave Creek platform collapse, a top official has to take the fall for work he could not be expected to have personally supervised.
The Law Commission is concerned also at the excessive costs of some inquiries. It would make them financially accountable to the Department of Internal Affairs, and give them the power to order a contribution from any who unduly delay or obstruct their work.
Public inquiries differ from court proceedings in their purpose. Inquiries are a quest for truth; courts are for the testing of civil claims or criminal charges against strict standards of proof. Some argue our criminal justice would be better if courts were to seek truth rather than proof, but personal liberty requires the higher protection. In cases where liberty is not at risk, however, inquiries could be more aggressive. Proper inquiries bound by rules of natural justice should enjoy the same legal immunity as Parliament. The public has probably supposed they already do.
