Royal Commissions Legal Alert 2

There are two Royal Commissions of Inquiry currently underway in New Zealand, and both have been in the news recently.  In light of this, we thought it was timely to take a look at the Inquiries Act, the types of inquiries that can be initiated under it, and what might be next for New Zealand's current Royal Commissions.  

Many will be aware of the ongoing Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions (Abuse in Care Inquiry), which was established in 2018 by the then-Labour Government.  The Abuse in Care Inquiry was initiated following a number of smaller-scale inquiries, calls for an inquiry by advocates and abuse survivors, and many years of survivors making claims against the state.

This week, Cabinet agreed a number of amendments to the Abuse in Care Inquiry's terms of reference and pushed the date for the Inquiry to issue its final report out to 26 June 2024 (the third such extension to the Abuse in Care Inquiry's deadline).

At the same time, public consultation on the terms of reference of the Royal Commission of Inquiry into COVID-19 Lessons Learned (COVID-19 Inquiry) has recently closed.  The consultation follows commitments in both the National/NZ First and National/ACT Party coalition agreements to expand the scope of the COVID-19 Inquiry (which was established in late 2022 by the former Labour Government).  It remains to be seen what changes might be made to the terms of reference following the consultation.

Buddle Findlay has extensive experience working on matters related to Royal Commissions, including having supported the Ministry of Health in its response to the Abuse in Care Inquiry.  If your organisation needs advice on how to respond to an inquiry, please don't hesitate to get in touch with our team.

Overview of inquiries under the Inquiries Act 2013

There are three types of inquiries under the Inquiries Act: Royal Commissions, public inquiries, and government inquiries.  Each type of inquiry investigates matters of public importance and provides its findings and non-binding recommendations through a final report.  Once the government sets the scope of an inquiry (formally known as the terms of reference), the inquiry will work independently, impartially, and fairly, and regulate its own procedures.  Inquiries have the power to compel evidence from witnesses and experts, including government agencies.  Although an inquiry has no power to determine the civil, criminal, or disciplinary liability of any person, it can make findings of fault or recommendations that further steps be taken to determine liability.

Royal Commissions are reserved for the most serious issues of public importance.  Recent examples include the Abuse in Care Inquiry, the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques, and the Royal Commission on the Pike River Coal Mine Tragedy.  Public inquiries are used for other matters of public importance, such as the Inquiry into the Earthquake Commission.  Both these types of inquiries report to the Governor-General.  Government inquiries generally have a narrower scope, focusing on specific matters – for example, the Government Inquiries into Mental Health and Addiction, and into Havelock North Drinking-Water.  They usually address smaller and more immediate issues, and report to the Minister that established the inquiry.  The findings from all types of inquiries may result in changes in legislation, internal processes, and policy.

The Abuse in Care Inquiry

On 1 February 2018 the Government announced it would establish a Royal Commission of Inquiry into abuse in state care.  The Abuse in Care Inquiry was formally established by an Order in Council on 12 November 2018.  Its terms of reference broadly describe its purpose and scope as being to inquire into the nature, extent, causative and contributing factors, and impacts, of abuse in state care and in the care of faith-based institutions (with a focus on the period 1950 to 1999).  The Abuse in Care Inquiry's mandate also includes other related issues such as present-day redress processes.

The Abuse in Care Inquiry has been the largest inquiry ever undertaken in New Zealand, hearing the experiences of close to 3,000 individuals, holding over a hundred days of public hearings, and receiving more than a million documents from the individuals and organisations involved (many of which have been government organisations).  The Abuse in Care Inquiry has undertaken more than a dozen different investigations and held a range of public hearings.  As part of this, government agencies and other organisations have been required to respond to extensive requests for records from the Abuse in Care Inquiry and provide witnesses to give evidence at hearings.

In accordance with its terms of reference, the Abuse in Care Inquiry delivered a two-part interim report on its work to date in December 2020,[1] and another interim report with recommendations on redress processes in December 2021.[2]  Initially, the Abuse in Care Inquiry was due to deliver its final report by 3 January 2023.  Early on it become apparent that more time would be needed to prepare its final report, and the date was extended out to June 2023.  A further extension was given until 28 March 2024, with the Abuse in Care Inquiry citing the volume of evidence received as the key reason for the extension. 

Yesterday's announcement by the Minister of Internal Affairs that the final reporting date has been pushed out to 26 June 2024 cited additional time needed "to complete natural justice processes related to [the Abuse in Care Inquiry's] findings and recommendations, a requirement under the Inquiries Act 2013."[3]  The Abuse in Care Inquiry's website also cites ongoing litigation as a reason for the delay.[4]

The Minister's press release also noted "I have made clear my position to the Royal Commission that this is the final extension request that will be considered." 

The COVID-19 Inquiry

On 8 December 2022, the Government announced the establishment of the COVID-19 Inquiry.  The aims of the COVID-19 Inquiry were to prepare future governments on effectively managing pandemics and identify the necessary resources to support the nation's fiscal and monetary policy responses.  The COVID-19 Inquiry has been exploring the effectiveness of New Zealand's approach to controlling Covid and mitigating its effects on vulnerable populations and the healthcare system.  This has included the implementation of various strategies such as the isolation and quarantine measures, vaccine mandates and lockdowns, fiscal and monetary policy responses, and how these impacted Māori and essential workers.  The COVID-19 Inquiry commenced its work in February 2023 and is currently required to publish its final report by 30 September 2024. 

The coalition agreements between National and each of New Zealand First and the ACT Party included commitments related to the scope of the COVID-19 Inquiry.  In early February 2024, the Minister of Internal Affairs announced a public consultation process on the scope of the COVID-19 Inquiry's terms of reference.  In her press release, the Minister stated that "the current terms of reference were decided by the same Government responsible for the COVID-19 response and they place significant limits on what the inquiry can consider.  New Zealanders deserve a frank assessment of what occurred and how we can learn from it."[5] 

The Government sought feedback on the possibility of including a number of further topics within the scope of the COVID-19 Inquiry, including:

  • The use of multiple lockdowns
  • Vaccine procurement and efficacy
  • The extent of disruption to New Zealanders' health, education, and business as a result of the Government's policies
  • If the Government's response was consistent with the rule of law.

Now that the public consultation has closed, we await the announcement of the outcome of that process, and any changes to the terms of reference of the COVID-19 Inquiry.

How we can help you

Buddle Findlay has extensive experience assisting government agencies to respond to Royal Commissions of Inquiry.  The support we have provided to the Ministry of Health in its response to the Abuse in Care Inquiry has included assisting the Ministry (as well as other agencies) to respond to notices requiring information disclosure, prepare for hearings, and respond to the Abuse in Care Inquiry's reports.  Buddle Findlay also appeared for the Crown alongside Karen Feint KC during the Royal Commission's hearing into the Lake Alice Child and Adolescent Unit. 

Responding to a Royal Commission can be complex and resource-intensive.  If you have any questions about Royal Commissions or need advice on how your organisation should respond to an inquiry, please contact Natasha Wilson or Rebecca Dudley-Cobb, who are members of our Wellington public law team.

This article was co-authored by Natasha Wilson (partner), Rebecca Dudley-Cobb (senior associate), Jayden van Leeuwen (senior solicitor), Hugo Schwarz (solicitor) and Amy Xie (2023 / 2024 summer clerk).


[1] Document Library | Abuse in Care - Royal Commission of Inquiry
[2] He Purapura Ora, he Māra Tipu. | Abuse in Care - Royal Commission of Inquiry
[3] Government approves extension to Royal Commission of Inquiry into Abuse in Care |
[4] Pānui - March 2024 | Abuse in Care - Royal Commission of Inquiry
[5] Government consults on expanding COVID-19 Inquiry terms of reference |