A public inquiry into the Whakaari/White Island eruption needs to be launched "immediately", one of New Zealand's most experienced criminal lawyers says.
Nineteen tourists and two tour guides died from their injuries after the volcano exploded on December 9, and more than a dozen others were left with severe burns and blast injuries.
WorkSafe, police, the Civil Aviation Authority and Maritime New Zealand launched investigations eight months ago but central government is yet to decide whether to hold a Royal Commission of Inquiry.
Nigel Hampton QC, who has acted for the Pike River miners and their families, as well as CTV victims and their families, in public inquiries, is concerned the current Whakaari/ White Island investigations will, in his opinion, "pass the buck" with any scrutiny of and accountability for liability "conveniently falling between" agencies and disappearing from view.
He told NZME without an "independent and impartial" Royal Commission of Inquiry, it was his view nobody would "scrutinise and critically consider the overall potential failings".
Hampton said in his opinion: "Self-protection of one's own patch will prevail."
Hampton, who was made a Companion of the New Zealand Order of Merit for his services to law in 2018, said it was in the public interest to have an inquiry launched "immediately".
He said the longer New Zealand waited for officials to decide whether to launch one, "the less the inclination and impetus".
"Bureaucracy knows time is a killer of perceived need."
His comments come in response to documents released to NZME by the Department of Internal Affairs, discussing the possibility of a public inquiry.
They include an aide-memoire prepared on December 12, by Department of Internal Affairs staff for Minister Tracey Martin, that "it is highly undesirable to set up an inquiry in parallel to regulatory/criminal investigations".
"We have learned from the Royal Commissions into the Pike River Mine tragedy and the attack on the Christchurch mosques about the challenges faced when undertaking an inquiry at the same time as criminal and regulatory investigations and criminal prosecutions.
"Until the investigations are completed I urge that we manage down calls for an inquiry."
The memoire, for Martin to refer to at the upcoming Cabinet meeting, went on to say "inquiries are complex to establish, lengthy and costly, we should make a well-informed decision".
That same day, a department staff member wrote in an email: "An inquiry is beneficial when the highest levels of independence and impartiality are required."
"Not clear if that is the case here."
On December 17 the staff narrative changed, with one email saying advice to the minister "should not present an argument that an inquiry is not desirable, rather not at this time".
"Indeed if we cannot use the inquiry word at all that would be best."
The email also acknowledged that the Department of Internal Affairs may itself be subject to the Royal Commission of Inquiry.
It said: "If the scope includes some of the administrative and local government arrangements for the island, Department of Internal Affairs might be too conflicted."
This is because under the Local Government Act, the Local Government Minister is the territorial authority for some offshore islands such as Whakaari/White Island. The Department of Internal Affairs supports the minister to fulfil this role.
After reading the documents and comments from the department, Hampton said he had "never heard it expressed that it is not optimal [or highly undesirable] to have a commission of inquiry running alongside other investigations".
He said in the instance of Pike River, the Christchurch earthquakes and the Christchurch mosque attacks a Royal Commission was "set up immediately" while other investigations took place.
Hampton described the aide memoire's recommendation to "manage down" calls for an inquiry as "odious".
He said it was "a demeaning 'we know best' approach from the high pulpit - patronising at best".
"Public concerns and expectations obviously do not matter."
NZME asked the Department of Internal Affairs about the comments made in the released documents, and if the advice was appropriate, but the communications team initially did not answer these questions and referred them to Martin.
The minister's office declined to comment and the department later agreed to answer questions instead, via email.
The statement said any decision made about holding an inquiry would be done by ministers in Cabinet, not officials, and there was "no current deadline".
The department stood by the inquiry advice given to the minister, saying it was "potentially more difficult and sometimes more time-consuming" to conduct a Royal Commission of Inquiry concurrently to criminal and regulatory investigations, because of overlaps and potential prejudices.
"For example, having to delay or reschedule inquiry information requests, witness interviews or hearings because the same evidence or people are needed in another investigation."
"These issues can be managed but they are legally and practically more complex, more time consuming and add more cost to an inquiry," the statement said.
When asked if a Royal Commission was still being actively considered, the department deferred the question to Cabinet.
In a subsequent statement, Martin said a decision would be made "when a number of other investigations are concluded".
"We will have a lot more information when, for example, WorkSafe and the police have finished their work."
WorkSafe's investigation is expected to take a year.
What is a Royal Commission of Inquiry?
• 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.
• 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.