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.