What will the commission of inquiry do?

20:33, Nov 28 2010

Finding the truth behind the Pike River tragedy might depend on these words: "any other matters".

It was that combination which allowed Justice Peter Mahon, sitting as a Royal Commissioner, to say in 1981 that Air New Zealand was telling "an orchestrated litany of lies" over the 1979 Mt Erebus crash which killed 257 people.

Also important later today, when the Government unveils a royal commission of inquiry into Pike River, is the name of the chair - and the "counsel assisting".

That's the view of Waikato University political scientist Alan Simpson who has researched the relatively arcane world of New Zealand commissions and royal commissions of inquiry.

"They are pretty good at getting definitive statements," he said.

"For the commissioners it is that they have their jobs and reputations at stake."


New Zealand has had dozens of commissions from rabbit control and horse racing to the major disasters in the nation's life.

Each commission receives terms of reference, setting out the questions the Government wants answered. These can be limiting, but Simpson said that most now have an added reference directing commissions to examine "any other matters".

This has been crucial.

"They usually have a clause that allows them to follow up on anything that takes their interest."

Justice Mahon did this with his royal commission report that was later successfully challenged by Air New Zealand in the British Privy Council. This scuttled a major thrust of the royal commission, although the term entered the national consciousness.

Simpson said by custom in New Zealand, a District or High Court judge chairs a commission of inquiry, but he questions why that is so, noting that internationally more expert people chair them.

But he said the role of the lawyer assisting the commission has always been "over-archingly critical".

Counsel assisting develop the case and run the parade of witnesses.

One worry identified by the Law Commission around inquiries is the way in recent years they have been over-lawyered and become excessively judicial.

While courts are adversarial, commissions are meant to be investigatory, going where they want to.

A prominent royal commissioner in the seventies, Sir Thaddus McCarthy, went to court in a bid to keep lawyers and rules of evidence from dominating proceedings.

"You are trying to keep the commission with breathing space, the ability to investigate "

Simpson was not in favour of a hastily-called commission of inquiry, suggesting they would need "a considered view" over what happened at Pike River.

Royal commissions into disasters have had profound impact in New Zealand, Simpson said.

The royal commission into the 1947 Ballantyne fire in Christchurch which killed 41 people led to a radical shake-up of the fire service now in existence.

A royal commission into the 1896 Brunner mine disaster which killed 65 miners led to substantial changes in mining practice.

"We did not know as much about accidents as we know now," said Simpson.

As a result, today safety in numerous situations is driven by legislation.

Existing legislation has impacted on the investigation practice.

When the Wahine sank in 1968 with the loss of 51 lives, a formal Marine Court of Inquiry was held. While its findings have more recently been disputed, its finding on open floor space vehicle decks was internationally significant.

The 1967 Strongman mine explosion which killed 19 led to a commission; it found mining regulations had been violated and ordered the Government to pay compensation.

The deaths of 14 people on a Department of Conservation viewing platform at Cave Creek in 1995 led to a commission of inquiry.

The one-man commission, District Court Judge Noble, asked what caused the catastrophe.

"Standing back and viewing the evidence objectively I am left with the overwhelming impression that the many people affected - victims and their families, departmental employees and their families and others closely associated with the disaster - were all let down by faults in the process of government departmental reforms."

There was little difference, he said, in a royal commission and a commission.

Prime Minister John Key has argued that royal is used for big social issues - such as reform of Auckland recently - while disasters were dealt with by simply inquiry which had the same legal powers of subpoena.

This is not, in fact, the case, and history has shown a great deal of inconsistency.

"The differences between the two forms are partly about their appointment, and partly about perception," Simpson says.

"Undoubtedly the 'Royal' touch does add something by way of prestige in the minds of some, whether a government is seeking to give weight to an inquiry, or whether a particular commissioner or commissioners are considering whether to participate."

Simpson could not imagine McCarthy - the grandfather of royal commissions - agreeing to anything other than royal.

"If it is a means of securing the participation ... then the 'Royal' attribute is worth having. There are political, social and psychological reasons, rather than legal ones, for retaining such a distinction."