Judicature Amendment Act 1972

Was the statutory power one of _decision_? The 1977 Amendment Act

brought statutory investigations or inquiries into rights or liabilities

within the definition of "statutory power". An inquiry into whether any

person caused or contributed to the crash by an act or omission in

respect of his duties is an inquiry into liabilities. But that is less

important for present purposes than the fact that the Amendment Act also

extended the concept of statutory powers of decision to those

"affecting" the rights of any person. The purpose was manifestly to make

the ambit of review under the Act at least as wide as at common law.

This point is dealt with in _Daemar_ v. _Gilliand_ (1981) 1 N.Z.L.R. 61.

We think it would be very difficult to justify an argument that findings

likely to affect individuals in their personal civil rights or to expose

them to prosecution under the criminal law are decision "affecting"

their rights within the meaning of the Act. In the present case, for

example, it was virtually certain that the findings of the Erebus

Commission would be published by the Government. The effect on the

reputation of persons found guilty of the misconduct described in the

Report was likely to be devastating, at common law every citizen has a

right not to be defamed without justification. Severe criticism by a

public officer made after a public inquiry and inevitably accompanied by

the widest publicity affects that right especially when the officer has

judicial status and none the less because he has judicial immunity.

The present case is in many ways unique and, if the findings in

paragraph 377 were made without jurisdiction or contrary to natural

justice, it affords a striking instance of how contrary to the public

interest it would be if the Courts were not prepared to protect the

right to reputation. The magnitude of the disaster, bringing tragedy to

many homes in New Zealand and overseas, and the fact that the national

airline was involved meant that the national attention was focused on

the inquiry. There are imputations of collective bad faith which had

started from a high place in the company and all this was likely to

receive the widest publicity, further, the findings in paragraph 377

amounted to public and official disclosures of alleged criminal conduct

and led to investigation by the police to determine whether charges

should be laid. In the event it was announced shortly before the hearing

of the present case that there would be no such charges, but clearly the

individuals concerned were in fact exposed to the hazard of prosecution

as a natural consequence of the Report.

In interpreting the 1977 legislation we think that a narrow conception

of rights and of what affects rights would not be in accord with the

general purposes of the Act. A broad, realistic and somewhat flexible

approach would enable the Act to work most effectively as an aid to

achieving justice in the modern community.

Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster C.A. 95/81 · 第 18 / 41 题