Inquiries

General

4.74 This guidance provides information on the different types of inquiry, and the principles that apply to their establishment.

4.75 Statutory inquiries, non-statutory ministerial inquiries, and standing statutory bodies with powers of inquiry have different powers and privileges, which should be considered when deciding on the most appropriate form of inquiry. Ministers and agencies may seek advice from the Attorney-General or Solicitor-General, and from the Cabinet Office and the Department of Internal Affairs, on matters relating to the establishment of an inquiry. Further guidance on statutory inquiries can be found in the Inquiries Act 2013 and on the Department of Internal Affairs' website.

4.76 All inquiries act independently of the government. Those conducting an inquiry may nonetheless consult with officials on technical matters and on the practical implications of any draft proposals.

4.77 All inquiries must follow the principles of natural justice.

Statutory inquiries

4.78 The Inquiries Act 2013 provides for three types of inquiry:

4.79 These three types of inquiry have identical powers, and differ only in status, method of appointment, and the way they report back. The options allow a flexibility of approach in establishing an inquiry.

4.80 The Inquiries Act 2013 is largely enabling. Where Ministers are satisfied that a matter of public importance requires an inquiry, the decision to then establish an inquiry is a judgement made by Ministers. There is no statutory threshold that determines whether or not an inquiry will be held.

4.81 The Inquiries Act 2013 distinguishes between the roles of the appointing and the appropriate Minister. In the case of a government inquiry, the Minister who establishes the inquiry under section 6(3) of the Inquiries Act 2013 is known as the “appointing Minister”. A government inquiry reports to the appointing Minister, and the appointing Minister makes the decision about any public release of the inquiry's report.

4.82 The “appropriate Minister” in relation to any type of inquiry is the Minister who, under the authority of any warrant or with the authority of the Prime Minister, is responsible for the relevant agency administering the inquiry. The choice of appropriate Minister may simply follow from the choice of the relevant agency best suited to support the inquiry. In the case of a government inquiry, a Minister may be both the appointing Minister and the appropriate Minister.

4.83 Which Minister will take responsibility for an inquiry is ultimately a matter for the Prime Minister to decide.

Royal commissions

4.84 Royal commissions are typically reserved for the most serious matters of public importance. They are appointed by the Governor-General, in the name of the Sovereign and on the advice of the Executive Council, under clause X of the Letters Patent Constituting the Office of Governor-General of New Zealand 1983 (see appendix B).

4.85 The Inquiries Act 2013 applies to Royal commissions as if they were public inquiries.

Public inquiries

4.86 Public inquiries may be established under the Inquiries Act 2013 for the purpose of inquiring into, and reporting on, any matter of public importance. A matter may require a public inquiry when it pertains to a particularly significant or wide-reaching issue that causes a high level of concern to the public and to Ministers.

4.87 A public inquiry is established by the Governor-General by Order in Council. The final report of a public inquiry is presented to the Governor-General, and must be presented by the appropriate Minister to the House of Representatives as soon as practicable thereafter.

Government inquiries

4.88 Government inquiries may be established under the Inquiries Act 2013 for the purpose of inquiring into, and reporting on, any matter of public importance. In practice, government inquiries typically deal with smaller and more immediate issues where a quick and authoritative answer is required from an independent inquirer.

4.89 A government inquiry is established by one or more Ministers by notice in the New Zealand Gazette and reports directly to the appointing Minister(s). There is no requirement that the report of a government inquiry be tabled in Parliament.

Duties, powers, immunities, and privileges of statutory inquiries

4.90 All inquiries must act independently, impartially, and fairly.

4.91 An inquiry may regulate its own procedures as it considers appropriate, unless otherwise specified by the Inquiries Act 2013 or by the inquiry’s terms of reference. This broad discretion allows a degree of flexibility in the level of formality required.

4.92 However, all public inquiries and government inquiries have statutory powers to require the production of evidence, to compel witnesses, and to take evidence on oath. Where powers of search and seizure are considered necessary, investigation by a specialist agency with these powers is more appropriate.

4.93 Where an inquiry is established under the Inquiries Act 2013, the exercise of statutory powers in relation to members of Parliament and parliamentary agencies will require the recognition of parliamentary privilege.

4.94 Witnesses and counsel are protected by the same immunities and privileges that they would have before the courts. Commissioners are also protected.

4.95 Inquiries may refer questions of law for determination by a court.

4.96 Inquiries usually hold open hearings with public and media access, but may restrict access as the need arises. The inquiry's terms of reference may also limit public access. An inquiry may make orders to forbid the publication of certain information, including evidence and submissions, or to restrict public access to any part or aspect of the inquiry. Before doing so the inquiry must take into account certain specified criteria, such as privacy and the benefits of open justice.

4.97 Statutory inquiries are excluded from the definition of “New Zealand agency” in the Privacy Act 2020, which means that the requirements of the Act do not apply to such inquiries. However, inquiries may still choose to handle personal information they collect and hold in accordance with some or all of the privacy principles in the Privacy Act 2020.

4.98 An inquiry is subject to the Official Information Act 1982 once it has presented a final report. However, information that is the subject of an order imposing restrictions on access and certain documents that relate to the internal deliberations of the inquiry are not official information for the purposes of the Official Information Act 1982.

Administrative support for inquiries

4.99 The Inquiries Act 2013 is administered by the Department of Internal Affairs.

4.100 The Department of Internal Affairs is the default agency for providing administrative support to inquiries (known under the Inquiries Act 2013 as the “relevant department”). However, another agency may be appointed the relevant department, under the terms of reference for the inquiry, if it is better placed to provide technical or subject matter expertise, or if it is determined that it would be inappropriate for the Department of Internal Affairs to be appointed the relevant department (for example, because of an actual or perceived conflict of interest).

Establishing an inquiry

4.101 A Minister must consult the Prime Minister and the Attorney-General when assessing whether to establish an inquiry, prior to submitting any proposal to Cabinet. Cabinet papers proposing the establishment of an inquiry are often joint papers from the portfolio Minister and the Minister responsible for the Inquiries Act 2013. More than one Cabinet paper may be required during the establishment of an inquiry. The Cabinet paper(s) should address the matters covered in paragraphs 4.103 - 4.114.

4.102 Further guidance on the process for obtaining Cabinet approval for the establishment of an inquiry is contained in guidance material issued by the Department of Internal Affairs.

Subject of inquiry

4.103 An inquiry may be established to inquire into any matter of public importance. An inquiry should not usually be appointed, however, where an existing body has jurisdiction to carry out the investigation.

4.104 Although inquiries are not prevented from making findings of fault or making recommendations that further steps be taken to determine liability, an inquiry has no power to determine the civil, criminal, or disciplinary liability of any person.

Purpose of inquiry

4.105 The purpose of an inquiry may include:

Terms of reference

4.106 Terms of reference can be used to give direction to or place restrictions on the inquiry, and to give specific procedural directions not set out in the Inquiries Act 2013. 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.

4.107 The relevant agencies should be consulted on the terms of reference, along with, ideally, the proposed commissioner or inquirer, and directly interested or involved persons.

4.108 The commission appointing a Royal commission and the Order in Council establishing a public inquiry are drafted by the Parliamentary Counsel Office.

4.109 A New Zealand Gazette notice establishing a government inquiry is drafted by the responsible agency, in consultation with the Crown Law Office and any other relevant agencies.

Appointment of inquirer or commissioner

4.110 The Inquiries Act 2013 does not specify any requirements about the number or expertise of inquirers. Nonetheless, decisions about the appointment of commissioners or inquirers are fundamental to an inquiry's success. The commissioners or inquirers should be people whose expertise best suits the subject matter and purpose of the inquiry. Where an inquiry exercises powers of compulsion and undertakes formal examination and cross-examination of witnesses, legal experience may be essential. If it is proposed that a sitting or retired judge be appointed, the Attorney-General must consult the Chief Justice. If the nominated appointee is a sitting judge, the relevant Head of Bench should also be consulted.

4.111 Depending on the size, complexity, and likely length of an inquiry, more than one inquirer may be appointed. Where more than one inquiry member is appointed, members should have complementary skills and experience. If one inquirer is unable to continue, the remaining inquiry members should still have the broad skills required to complete the task. Fees for commissioners are set under the fees framework set out in Cabinet Office circular CO (19) 1 Revised Fees Framework for Members Appointed to Bodies in which the Crown Has an Interest.

Budget and timeframe

4.112 The budget for an inquiry should allow for the inquiry to have access to discrete resources and, in most cases, a secretariat established for the purpose of the inquiry. Inquiries are usually funded by an increase in appropriation inVote Internal Affairs, typically by a charge against the Budget contingency. If a different responsible agency is appointed, the inquiry will be funded from the relevant Vote. The Treasury and the Department of Internal Affairs should be consulted on the budget.

4.113 Realistic timeframes should be set, acknowledging that the scope of the issues may not be clear until considerably further along in the process.

4.114 Inquiries must be fiscally accountable. The Department of Internal Affairs or the responsible agency, as appropriate, will establish the process for monitoring the budget and the reporting timeframe.

Other inquiries

Non-statutory ministerial inquiries

4.115 In some cases, it may be considered appropriate or desirable for a Minister to establish a non-statutory inquiry into an area for which they have portfolio responsibility. However, the ability to establish a government inquiry under the Inquiries Act 2013 means there are likely to be fewer circumstances than previously in which a non-statutory inquiry would be established.

4.116 Non-statutory inquiries have no coercive powers, and therefore rely solely on witnesses' cooperation. They offer no immunities for those taking part, including inquirers, lawyers, and witnesses. Information relating to a non-statutory ministerial inquiry will be subject to the Official Information Act 1982 in the normal way.

4.117 In order to establish a non-statutory inquiry, the Minister should seek the Prime Minister's agreement to the matters referred to in paragraphs 4.103 - 4.114 and advise Cabinet as soon as possible of these details.

Statutory bodies with inquiry powers

4.118 A wide variety of statutory bodies has powers to inquire into events or issues. Examples include the Public Service Commissioner, the Ombudsmen, the Auditor-General, the Law Commission, the Health and Disability Commissioner, the Independent Police Conduct Authority, the Privacy Commissioner, and the Inspector-General of Intelligence and Security. Some inquiries may be initiated by a statutory body; in other cases, a Minister may ask a statutory body to investigate certain issues.

4.119 Before an inquiry is established, consideration should be given to whether any of these existing bodies can more appropriately conduct the inquiry. Factors to consider will be the size and complexity of the matter at hand, and the capacity of the body to conduct the inquiry within its existing resources.

4.120 In some circumstances, consideration should be given to whether it may be more appropriate to refer information to the police or to another investigative agency.

Select committee inquiries

4.121 A select committee may hold an inquiry within its subject area. After considering evidence and advice, a committee may report to the House with its conclusions and recommendations, which may be addressed to the government. The government must respond to such recommendations within 60 working days. See paragraphs 7.123 - 7.126 for more information on government responses to select committee reports. Select committee powers and natural justice procedures are set out in the chapter on select committees in the Standing Orders.

4.122 A select committee inquiry is usually initiated by the committee itself and is likely to focus on scrutinising a specific area of government activity. The House may, however, refer a matter to a select committee for inquiry, particularly where the matter is outside the committee's normal subject area.

4.123 Issues suitable for a select committee inquiry are likely to be those that would benefit from input from a wide range of interested groups and the general public, and on which the holding of an inquiry would have support from a number of parliamentary parties. Other matters to consider include the expertise and resources of the committee, and its legislative or other competing workload.

4.124 If a Minister considers that an issue may be suitable for a select committee inquiry, the Minister should first discuss the issue with the Prime Minister and the Leader of the House. If this course of action is agreed, the Minister may, after consulting other parliamentary parties, write to the select committee inviting it to initiate an inquiry. Alternatively, the Minister may, by motion, seek to have the matter referred by the House to the select committee. Occasionally the House may establish an ad hoc select committee to conduct an inquiry.