Royal Commissions have been in the news recently. The long-running Abuse in Care Inquiry is due to provide its final report to the Governor-General next month, and the government recently ran a public consultation on whether to expand the scope of the Inquiry into COVID-19 Lessons Learned.
Yet their workings can seem mysterious to most New Zealanders. With previous inquiries dealing with subjects as diverse as the Mount Erebus air disaster, Pike River, and the March 2019 terrorist attack on Christchurch masjidain, it’s worth explaining why they sometimes take years, what’s actually involved in the process, and what they achieve.
Royal Commissions are, in many ways, the most serious response that the government can take to address an issue – the Law Commission described Royal Commissions in 2008 as the "heavy artillery of the existing [inquiries] framework". While there are no strict criteria that must be met for a Royal Commission to be set up, they are often used to investigate events or issues of national significance where there is a substantial public interest. Royal Commissions often play a role in holding people and institutions to account for their part in significant events, or in exploring and trying to resolve complex issues (such as permitting genetically modified crops or reforming the electoral system).
In some cases, Royal Commissions reflect the priorities of the government of the day. The Inquiry into COVID-19 Lessons Learned was first announced by the previous Labour Government. However, in the National Party’s coalition agreements with both ACT and New Zealand First, the coalition partners agreed to review the Commission's scope, which may change the topics being investigated by the Commissioners. More than 13,000 people submitted as part of the consultation on the COVID-19 Inquiry's scope.
As we can see from that process, the government sets the scope of a Royal Commission's work (known as the "terms of reference") and appoints the Commissioners that oversee the inquiry. After that, a Royal Commission works independently and impartially from the government. This means that, short of changes to the terms of reference, a Commission cannot be directed to investigate (or not investigate) certain issues, or to run its inquiry in any particular way. As long as the Commission operates within its terms of reference, it has wide-ranging powers to require witnesses and experts (including from government agencies) to give evidence and produce documents. Royal Commissions also have considerable flexibility to decide what they want to look into and who they want to talk to. This was demonstrated recently when a bid by the Christian Congregation of Jehovah's Witnesses to avoid scrutiny by the Abuse in Care Inquiry was dismissed by the Court of Appeal.
Generally, a Royal Commission's work will culminate in a highly detailed final report that sets out the Commission's findings and recommendations. It is then up to the government of the day to decide how it wants to respond. A Royal Commission cannot find that any person, organisation, or business is or should be liable under civil or criminal law for anything they may have done (or not done). Nor can a Commission take disciplinary action. However, a Royal Commission can make findings of fault and recommend that further steps are taken to determine liability.
Why do Royal Commissions sometimes take such a long time?
The length of Royal Commissions has been in the spotlight recently, with the Abuse in Care Inquiry due to deliver its final report next month, having been established in 2018. This Inquiry is New Zealand's longest-running Royal Commission by some margin; however, it is not uncommon for Royal Commissions to run for a number of years and for reporting deadlines to be extended. For example, the deadline for the Royal Commission into the Erebus disaster was extended four times, and the deadline for the Pike River Inquiry twice.
Royal Commissions deal with some of New Zealand's most complex issues. It makes sense that investigating, and then making findings and recommendations on such issues, is a time-consuming process. The length of the inquiry can be influenced by a wide range of factors; in particular, the subject matter itself. For example, the Abuse in Care Inquiry is looking into events spanning a 50-year period. This has resulted in it hearing from close to 3,000 individuals, holding 133 days of public hearings and receiving over a million documents. Inherently, such an inquiry will take longer than an inquiry with a focus on a single event.
However, other factors also come into play. In 2008, the Law Commission stated (as part of a review of the previous Commissions of Inquiry Act 1908) that there were "commonly expressed concerns about…royal commissions [that] relate to their cost and duration". The report (which eventually led to the current 2013 legislation) recommended changes to address this, stating the fact that "royal commissions have tended to adopt very formal processes…means they often involve greater participation by lawyers, higher costs and more delay than might otherwise be the case." In other words, running Royal Commissions in an adversarial way that involves a lot of lawyers tends to lead to higher costs and longer timeframes.
Recent Royal Commissions have taken quite different approaches to their inquiry. For example, the Inquiry into Abuse in Care has been conducted in a very open manner, including the questioning of witnesses in a public forum (not unlike a courtroom). In contrast, the Royal Commission into the terrorist attack on Christchurch masjidain was effectively held in secret. Nearly 400 people, including the prime minister, were interviewed, and over 1,000 public submissions were received – but almost none of that information was made public.
These two different approaches can be explained by the very different natures of the two inquiries. A central purpose of the Inquiry into Abuse in Care is to give a voice to survivors of abuse who had gone unheard for so long. In contrast, the Royal Commission into the terrorist attack on Christchurch masjidain dealt with matters of national security, as well as having an overlay of protecting the perpetrator's fair trial rights and the identity of witnesses. Concerns were also raised that making public some of the information provided to the Royal Commission might inspire other would-be terrorists.
Notably, the ongoing COVID-19 inquiry has, so far, used a “non-adversarial” process, where witnesses are not publicly 'cross-examined', which potentially saves time and expense. It remains to be seen whether this approach is retained following the recent consultation on the scope of this inquiry.
Extensions to the scope of Royal Commissions can also impact on the length of time that they take to complete. For example, the terms of reference for the Inquiry into Abuse in Care were significantly expanded from covering just historically state-run institutions to also include faith-based care settings. It also chose to gather testimony from people whose experiences dated beyond the original "cut-off year" of 1999.
What do Royal Commissions achieve?
The findings of a Royal Commission are not legally binding, but they tend to be very influential. Findings can result in law changes, the development of new government policies, reallocation of resources and other measures aimed at avoiding future harm. Importantly, they can also give a voice to people who have been negatively impacted by state actions or decisions. However, decisions about whether a Royal Commission's recommendations are implemented are primarily a matter for political decision-making by Ministers and Cabinet. Because of this, the extent to which a Commission's recommendations are implemented by the government can vary.
For example, the Royal Commission that investigated Pike River made a range of recommendations related to New Zealand's workplace health and safety regime, resulting in major changes. In particular, the Commission recommended the establishment of a Crown agent focussed solely on health and safety, and WorkSafe was established shortly after in 2013.
More recently, the Royal Commission into the terrorist attack on Christchurch masjidain made 44 recommendations, all of which were accepted in principle by the government at the end of 2020. However, while some of those recommendations were swiftly implemented (eg the appointment of a coordinating minister responsible for the government’s response to the report, and the establishment of the Ministry for Ethnic Communities), work on others remains incomplete.
It remains to be seen whether the recommendations of the two current Commissions will be accepted by the government. What happens next will depend on the nature and complexity of the recommendations, and the government's appetite to implement them. The final report on the Abuse in Care Inquiry is due on 26 June.
This article was originally published in the NBR.
This article is co-authored by Natasha Wilson (partner), Rebecca Dudley-Cobb (senior associate), Jayden van Leeuwen (senior solicitor) and Hugo Schwarz (solicitor).
