Public inquiry reform in New Zealand

New Zealand’s inquiries reform targeted their legalistic and adversarial nature

Concerns had been growing in New Zealand in the early 21st century that formal inquiries had become excessively complex and adversarial, requiring greater use of legal representation and contributing to increased costs and delays. This in turn led to a marked rise in the use of non-statutory ministerial inquiries (established by individual ministers) as these were seen as a faster, more cost-effective alternative to statutory inquiries , and following a more investigative rather than adversarial approach. However, because they lacked statutory powers to compel witnesses their ability to effectively addressed complex issues was called into question. 

The 2008 Law Commission report, A New Inquiries Act, recommended a legislative framework to promote an inquisitorial rather than adversarial approach. ²¹ Law Commission, A New Inquiries Act, report 102, May 2008, www.lawcom.govt.nz/our-work/public-enquiries The resulting Inquiries Act 2013 introduced a more flexible system, offering three statutory options for inquiry – starting with a short, more narrowly focused inquiry through to a Royal Commission which deals with much more complex and sensitive incidents.

This moved the system on from the dichotomy of a “bells and whistles commission on the one hand and a non-statutory ministerial inquiry on the other”. ²² Law Commission, A New Inquiries Act, report 102, May 2008, www.lawcom.govt.nz/our-work/public-enquiries/, p 34  To reduce legal costs, the Act also restricted inquiries from directly engaging independent legal counsel. While secretariats often include legal staff, independent counsel must be approved by the solicitor general. Nor can an inquiry meet the legal expenses of participants without the approval of the Chief Executive of the administering department.

The Act introduced flexible options for statutory inquiries

The Inquiries Act 2013 provides three tiers of statutory inquiries:

• Government inquiries – typically dealing with narrower and more immediate issues where a relatively quick and authoritative answer is required from an independent inquiry. These were largely intended to replace non-statutory ministerial inquiries, though are still established by, and report to, a minister. They are relatively quick, taking an average of 10 months to report.
• Public inquiries – established by the Governor-General on the recommendation of the Government ‘to inquire into, and report on, any matter of public importance’. These report to the Governor-General and parliament, and take on average 1.5 years.
• Royal Commissions – also established by the Governor-General in Executive Council. These inquiries are typically reserved for the most serious matters of public importance (recent examples include Covid-19, historical abuse in care and the terrorist attack on the Christchurch mosques). Some of the most complex commissions have taken up to seven years, but the average length is still only 20 months – far shorter than the average UK public inquiry.

While all three types of inquiry have the same statutory powers, they differ in how they are established and who they report to. An underlying principle is that an inquiry under the Inquires Act 2013 should only be established when no alternative mechanism exists or when an independent inquiry is the most suitable option.

Internal guidance supports decision making

Given the different options in the new system, clear guidance is essential for ministers deciding whether and how to establish an inquiry. The New Zealand Cabinet Manual provides detailed guidance on the process, supporting officials to help ministers to determine whether to use a statutory inquiry, what kind of inquiry to use, and the process for establishing the inquiry. ²⁶ New Zealand Cabinet Manual  The guidance states that a statutory inquiry should not usually be used when public concerns can be addressed through another existing action, review or body with jurisdiction to run its own inquiries in the relevant area. ²⁷ New Zealand Cabinet Manual

The Department of Internal Affairs supports New Zealand’s inquiries

The DIA plays a central role in administering the Inquiries Act. The department hosts a dedicated team that advises ministers on options for inquiry, the legislative and procedural requirements, as well as best practice based on guidance, previous practice and experience from past inquiries.

The DIA also assists in preparing drafting instructions for terms of reference (TORs) for an inquiry, which define the inquiry’s scope, including what is explicitly out of scope. This process involves consultation with the minister, Crown Law Office, and relevant departmental experts. The TORs themselves are drafted by the Crown Law Office. The TORs guide the inquiries focus, for example whether to concentrate more or less on reassurance, lesson learning, accountability and blame or other priorities. Inquiry TORs in New Zealand often include directions on the procedures to be adopted by the Inquiry.

Inquiries have deadlines and budgets set from the start

Based on the indicative TORs, the DIA also advises on appointments of inquiry members (such as the chair and commissioners), and on a timeline and budget that are set for the inquiry at the start, ensuring that inquiries begin with clear expectations – for the chair, inquiry secretariat, government and the public – on scope, duration and cost. While some inquiries still require extensions, chairs must justify any request for additional time or resources to the appropriate minister, and obtain the Minister or Cabinet’s agreement, ensuring accountability and efficiency.

The DIA acts as host for inquiries reducing administrative costs

Beyond its advisory role, the DIA serves as the corporate host for most statutory inquiries, providing essential back-office administrative support. ²⁸ There is an exception where another government department may act as a host if DIA administration of the inquiry could lead to a conflict of interest.  This includes setting up the secretariat and recruiting the Head of the secretariat (generally in consultation with the chair), allocating the budget, and securing office space and infrastructure including a website.

Reflecting the independence of an inquiry, DIA does not play any part in the secretariat’s work supporting the inquiry nor does DIA access any inquiry materials until the inquiry concludes, at which point it assumes responsibility for record management and the transfer of records to the Archives. As part of inducting each group of Inquiry members and secretariat, or otherwise where requested by an Inquiry, the DIA does provide some generic technical advice on practice, process, and procedure issues, informed by its knowledge of the legislative provisions and the practice of previous inquiries.

What lessons can the UK learn from the New Zealand example?

Despite some challenges, New Zealand’s approach offers a structured and effective model for conducting statutory inquiries, combining clear guidance, dedicated administrative support, and flexible inquiry options.

A key lesson for the UK is how the New Zealand model encourages ministers to carefully consider the purpose and objectives of a potential inquiry and to select the option that best meets those needs. The three types of statutory inquiry are tailored to different levels of severity and complexity. While all have the same legal powers, the difference in cost and duration between them are significant. New Zealand also has a range of statutory inquiry mechanisms beyond inquiries and there are options for parliamentary inquiries and non-statutory ministerial inquiries. Detailed guidance encourages ministers reserve statutory public inquiries for cases where the public concern cannot be adequately addressed through other investigatory options.

By contrast the UK does not have a formal hierarchy of statutory inquiry types. The alternative is usually a non-statutory inquiry ³³ Examples include the Morcombe Bay Inquiry and the Angiolini Inquiry which is currently ongoing. , which, while lacking subpoena powers and ability to take evidence under oath, have in practice become increasingly similar to statutory inquiries in the way they are run and the legalistic culture. Although the statutory inquiry framework does provide chairs with significant procedural flexibility, it also includes formal requirements – such as the issuing of warring letters – which can extend timelines and increase costs. ³⁴ The average cost of statutory inquiries that have reported since the Inquiries Act 2005 is almost 7 times higher than for non-statutory inquiries.

UK ministers frequently default to calling for a statutory inquiry ³⁵ Since 2020 the ministers have established 14 statutory inquiries and 1 non-statutory inquiry www.instituteforgovernment.org.uk/explainer/public-inquiries , in part because it is perceived to the be most authoritative and rigorous options. However, it is not always the most appropriate or effective option and the time involved can mean that victims, survivors and families wait years for answers and there are significant delays to lessons being learnt.

Establishing a formal hierarchy of statutory inquiry options in the UK would require reform of the Inquiries Act 2005. However, ministers already have access to a range of existing alternatives, non-statutory inquiries, independent reviews and statutory investigations conducted by other bodies. Unlike in New Zealand there is limited guidance and support to help ministers think through the most appropriate model. In contrast to New Zealand’s Cabinet Manual guidance, in the UK, a 2014 House of Lords Committee reviewing the UK Inquiries Act criticised the UK’s Cabinet Manual guidance as ‘wholly inadequate’. ³⁶ The Inquiries Act 2005: post-legislative scrutiny - Select Committee on the Inquiries Act 2005, https://publications.parliament.uk/pa/ld201314/ldselect/ldinquiries/143/14301.htm  While external pressure will always exist for what is perceived as the most rigorous option, comprehensive and accessible guidance – covering all available options, their powers, reporting structures and examples of past use – would better equip officials and ministers to select the most appropriate and effective model to address the purpose and objectives of an investigation. Tackling the ‘one size fits all’ approach to public inquiries is one way to reduce the cost and ensure lessons are learned faster.