As has been the practice in New Zealand when a Commission of Inquiry
consists only of or is chaired by a High Court Judge, the Erebus
Commission was a Royal Commission in that the warrant was expressed to
be issued under the authority of the Letters Patent of 1917 constituting
the office of Governor-General. One of the powers delegated by the
Letters Patent to the Governor-General is to "constitute and appoint, in
Our name and on Our behalf, all such ... Commissioners ... as may be
lawfully constituted or appointed by Us". The warrant was also expressed
to be issued under the authority of and subject to the provisions of the
Commissions of Inquiry Act 1908, and s. 15 of that Act extends and
applies not only to inquiries under statutory Commissions appointed by
the Governor-General or Governor-General in Council but also to
inquiries under the Letters Patent. This means inter alia that
statutory-powers of summoning witnesses and requiring the production of
documents apply, that a Judge of the High Court acting as Commissioner
has the ordinary judicial immunity, and that interested persons have
statutory rights to be heard under s. 4A, inserted by an amendment made
in 1980 shortly before the inquiry now in question began. Section 2 of
the 1908 Act empowers the Governor-General by Order-in-Council to
appoint any person to be a Commission to inquire into and report upon
any question arising out of or concerning a range of matters. The
relevant one is "(e) Any disaster or accident (whether due to natural
causes or otherwise) in which members of the public were killed or
injured ..." In giving statutory power to appoint Commissions and
listing permissible subjects the Act differs from the Evidence Acts
considered in Australian cases. The Australian Acts presuppose the
existence of Commissions appointed under prerogative or inherent
executive powers and merely confer ancillary powers of compelling
evidence and the like. Under Acts of that type the validity of the
Commission depends on the common law and the division of powers in the
Australian Constitution. Under the New Zealand Act a Commission can be
given a statutory source for its basic authority even if it is a Royal
Commission and has a prerogative source as well.
The Erebus Commission was appointed to inquire into the causes and
circumstances of the crash. Among the particular questions referred to
it was:
(g) Whether the crash of the aircraft or the death of the
passengers and crew was caused or contributed to by any person
(whether or not that person was on board the aircraft) by an act or
omission in respect of any function in relation to the operation,
maintenance, servicing, flying, navigation, manoeuvring, or air
traffic control of the aircraft, being a function which that person
had a duty to perform or which good aviation practice required that
person to perform?
All the terms of reference fall well within s. 2 (e). The Commission was
not appointed to inquire into allegations of crime so we are not now
called upon to go into the question whether a Royal Commission can be
appointed for such a purpose, on which New Zealand and Australian
authorities diverge (see _In re The Royal Commission on Licensing_
(1945) N.Z.L.R. 665, 679; and D.R. Mummery "Due Process and
Inquisitions", 97 L.Q.R. 287). Nevertheless paragraph 377 of the Royal
Commission Report contains findings of organized perjury. The judgment
in the leading New Zealand case, _Cock_ v. _Attorney-General_, while
denying that the prerogative can authorize a Commission with the main
object of inquiring into alleged crimes, recognizes at p. 425 that a
Commissioner may investigate an alleged crime if to do so would be
"merely incidental to a legitimate inquiry and necessary for the purpose
of that inquiry". We think that the test must be what is reasonably
incidental to valid terms of reference. In relation to paragraph 377 the
allegation of excess of jurisdiction turns accordingly on whether the
findings are reasonably incidental to an inquiry into the causes and
circumstances of the crash.
It is difficult to find reasons why the Court should refuse to entertain
that question. While Commissions of mere inquiry and report are largely
free from judicial control, there is strong authority indicating that
the Courts have at least a duty to see that they keep within their terms
of reference. We agree with the opinion of Myers C.J. in the _Royal
Commission on Licensing_ case at p. 680 that it is implicit in all the
judgments in the Privy Council and the High Court in _Attorney-General
for the Commonwealth of Australia_ v. _Colonial Sugar Refining Co. Ltd_
(1914) A.C. 237, 15 C.L.R. 182, that if it can be said in advance that
proposed questions are clearly outside the scope of the inquiry they are
irrelevant and cannot be permitted. In the _Royal Commission on
Licensing_ case that very principle was applied in this Court, it being
held that certain matters were not within the ambit of the Commission's
inquiry. That decision was given on a case stated by the Royal
Commission under ss. 10 and 13 of the 1908 Act, but the _Sugar Company_
case was an action for declaration and injunctions and the procedure was
expressly approved in the judgment of their Lordships delivered by
Viscount Haldane L.C. ((1914) A.C. at 249-50). Similarly in _McGuinness_
v. _Attorney-General_ (1940) 63 C.L.R. 73 the High Court, on an appeal
from a conviction for refusing to answer a question touching the subject
matter of an inquiry by a Commissioner, accepted without any apparent
difficulty that the Court had authority to determine whether the
question was relevant.
We do not overlook that the cases just cited were concerned with the
scope of questions that might be put to witnesses under compulsory
powers given by statute. They were not directly concerned with the scope
of findings in reports. But if the Court has jurisdiction to determine
the true scope of a Commission's inquiry and require the Commission to
keep within that scope there are obvious arguments that it should have a
corresponding jurisdiction in the matter of findings. A vital part of
the constitutional role of the Courts is to ensure that all public
authorities, whether they derive their powers from statute or the
prerogative, act within the limits of those powers.
A different view was taken by Stephen J. sitting at first instance in
chambers in _R._ v. _Collins_ (1976) 8 A.L.R. 691, but we note the
opinion expressed in several Canadian cases that the Court will
intervene where a Commissioner has inquired or seeks to inquire into
matters outside his terms of reference: _Re Sedlmayr_ (1978) 82 D.L.R.
(3d.) 161; _Re Anderson_ (1978) 82 D.L.R. (3d.) 706; _Landreville_ v.
_The Queen_ (1973) 41 D.L.R. (3d.) 574; _Landreville_ v. _The Queen_
(No. 2) (1977) 75 D.L.R. (3d.) 380, 400-402.
In _Re Royal Commission on Thomas Case_ (1980) 1 N.Z.L.R. 602 a Full
Court (Molier, Holland and Thorp JJ.) held inter alia that the Court may
prohibit a Commission from acting in excess of its jurisdiction and that
the creation of a Commission pursuant to the Letters Patent does not
exempt it from the supervisory role of the Court. However part of the
Full Court's decision in that case is the subject of a pending appeal to
this Court and other proceedings relating to the Thomas Commission have
been moved into this Court. So we refrain from expressing any final view
upon it.
For the foregoing reasons we think that if the applicants make out their
claim that the findings of the Erebus Commission in paragraph 377 are
outside the commissioner's terms of reference, they could be granted a
declaration to that effect at common law. To obtain a setting aside of
the findings under s. 4 (2) of the Judicature Amendment Act 1977 they
have to show in addition that the findings were made in the exercise of
a statutory power of decision. We think this requirement should not
present final difficulty if regard is had to the evident intent and
spirit of the 1972 Act and particularly the amendments made by
Parliament in 1977.