Commission of Inquiry into Police Conduct : Questions and Answers
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Commission of Inquiry into Police Conduct

Questions and Answers

Transcripts of Hearings

Report of the Commission of Inquiry into Police Conduct

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Questions and Answers



1. What is a commission of inquiry and what is their statutory basis?
Commissions of inquiry are established to inquire into matters of major public importance of concern to the Government of the day. Commissions operate under the Commissions of Inquiry Act 1908. This Act sets out the legal requirements under which all commissions of inquiry must act. In particular commissions must act strictly within their terms of reference and ensure their processes are within the law.


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2. Who sets the terms of reference for a commission?
The terms of reference for commissions of inquiry are set by the Government and formalised by way of an Order in Council signed by the Governor-General.


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3. When was the Commission of Inquiry into Police Conduct established?
The Commission of Inquiry into Police Conduct was established by Order in Council on 18 February 2004.


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4. What was the Commission set up to do?
The terms of reference for the Commission of Inquiry into Police Conduct are set out in full in the 18 February 2004 Order in Council. In summary, the terms of reference directed the Commissioners to inquire into and report upon
  • the standards and procedures established by the Police as a matter of internal Police policy for the investigation of complaints alleging sexual assault by members of the Police or by associates of the Police or by both
  • the practice of Police in the investigation of complaints alleging sexual assault by members of the Police or by associates of the Police or by both
  • the adequacy of any investigations that had been carried out by the Police on behalf of the Police Complaints Authority and that had concerned complaints alleging sexual assault by members of the Police or by associates of the Police or by both
  • standards and codes of conduct in relation to personal behaviour for members of the Police
  • any other matters considered relevant to the inquiry.

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5. Who are “associates” of the Police?
Associates of the Police were defined in the terms of reference as “persons who are not members of the Police but who, whether in the capacity of friends or in any other capacity, associate with members of the Police”.


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6. What is the Commission of Inquiry into Police Conduct excluded from doing?
The 18 February 2004 Order in Council directed that the Commission should not determine the guilt or innocence of any particular individual in relation to any alleged sexual assault or other alleged criminal offence.

The 18 February 2004 Order in Council also directed the Commission not “at any time [to] publish or otherwise disclose, except to me … the contents or purport of any report so made or to be made by you, or any evidence or information obtained by you in exercise of the powers conferred upon you, except such evidence or information as is received in the course of a sitting open to the public:…”. (This direction is subject to the legal obligation of the Commission, contained in the Commissions of Inquiry Act 1908 as well as the New Zealand Bill of Rights Act 1990, to comply with the rules of natural justice).

The 2 May 2005 Order in Council directed that the Commission should not investigate any complaints that were the subject of current or ongoing investigations by the Police, or were the subject of criminal proceedings before the courts.


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7. Who is the Commissioner?
When the Commission was first established in 2004 there were two Commissioners – the Honourable James Bruce Robertson and Dame Margaret Bazley.

In May 2005, the Honourable James Bruce Robertson asked to be discharged because of the demands placed on him by his other responsibilities as a Judge of the High Court and President of the Law Commission. Thus from 2 May 2005 Dame Margaret Bazley became the sole Commissioner.


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8. Who are Counsel Assisting and what is their role?
Counsel assisting the Commission of Inquiry into Police Conduct are Ms Mary Scholtens QC and Mr Kieran Raftery. The role of Counsel assisting is to advise on interpretation of the Commission’s terms of reference and on appropriate procedures for the conduct of the inquiry. Counsel assisting also ensure that all relevant evidence is brought before the Commission and any hearings are conducted in a fair and balanced way. Counsel assisting are responsible for testing the evidence called by the parties. They also advise the Commission on legal issues. Counsel assisting are involved in ensuring that the Commissioner’s report is robust and evidence based. This includes providing advice on the requirements of fair procedure, and whether the Commissioner’s draft findings are properly supported by evidence.


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9. What is the definition of “parties” to the inquiry?
Section 4A(1) of the Commissions of Inquiry Act says that persons who are “entitled” to be heard are parties to the inquiry, being those who satisfy the Commission that they have an interest in the matter being inquired into beyond that of the general public. Those persons are entitled to appear at any hearings held by the Commission and to be represented by counsel. Other people do not have an automatic right to appear or to have counsel.

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10. How does an individual or organisation become a party to the inquiry?
Anyone who wishes to have party status must present their reasons to the Commission. Commissioner(s) decide on party status based on advice from Counsel assisting.


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11. Who are the “parties” to the Commission of Inquiry into Police Conduct?
The Commissioner received and approved four applications for party status. The four parties to the inquiry are - the New Zealand Police, the Police Complaints Authority, the Police Association and the Police Managers’ Guild.


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12. What did the Commission do when it was first set up in 2004?
In March 2004 the Commission called for registrations of interest from people who believed that they had made a complaint that fell within the Commission’s terms of reference. Expressions of interest from individuals and organisations wishing to provide information were received by the Commission from March 2004 onwards. Commission staff and Counsel assisting reviewed these expressions of interest to determine whether or not they fell within the Commission’s terms of reference, and whether they could provide useful information. Where it was agreed that the complaint fell within the terms of reference, Commission staff began a process of obtaining more detailed information from the people who had come forward.


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13. Who are the submitters?
Submitters are people who responded to the Commission’s request for registrations of interest in March 2004 and whose complaints fell within the Commission’s terms of reference. Submitters are not “parties” to the inquiry because the Commission’s terms of reference do not allow the Commission to make findings on individual cases. Thus there is no possibility of adverse findings being made in respect of submitters’ interests.


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14. Why was much of the Commission’s work put on hold in May 2004?
Because the Commissioners were concerned about the likelihood of direct conflict between the Police investigation work underway and the inquiry work of the Commission. Thus the Commissioners determined that the Commission could only concentrate on cases where there was no potential for cross contamination between the criminal investigation processes and the Commission’s inquiry processes. The Commission put on hold any cases that were also the subject of police investigations at that time.


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15. What did the Commission do from May 2004 – August 2004?
During this period, the Commission concentrated its work on the small group of submitters who had first approached the Commission in 2004, where there was no likelihood of direct conflict between the ongoing Police investigations and the work of the Commission. All other work being undertaken by the Commission was put on hold in May 2004.


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16. Why was the Commission adjourned in August 2004?
In August 2004 the Commissioners determined that the Commission could not proceed with any of its work because of the risk of the Commission’s inquiry processes prejudicing the criminal investigations that were under way at that time. The Commissioners considered that they could not proceed until the Police had confirmed that all Police investigation work had been concluded.


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17. How long was the Commission adjourned for?
The Commission was adjourned from 27 August 2004 until 7 February 2005.


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18. What did it mean for the Commission to be adjourned from August 2004 – February 2005?
The adjournment meant that any work that was being undertaken by the Commission was put on hold with effect from 27 August 2004. Submitters were advised that the Commission was adjourned. Most of the Commission staff were seconded to work in other organisations during this period. The Commission’s office was kept open with only a skeleton staff to answer queries and to maintain the basic office infrastructure.


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19. What happened when the adjournment finished?
The Commissioners reviewed the situation and on 21 March 2005 announced that they would hold a public meeting to review the issues outlined in the Ruling of 27 August 2004. At the meeting on 21 March 2005 the Commissioners announced that they were seeking written submissions from people on how they believed the Commission could proceed at the same time criminal processes were going on. They also announced that they would convene a special hearing on 22 April 2005 to consider these submissions.


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20. Why was the public hearing scheduled for 22 April 2005 cancelled?
On 21 April 2005, the Attorney-General, the Hon Dr Michael Cullen announced that the mandate for the Commission had been altered so that it could complete its work without prejudicing any criminal prosecutions. This announcement meant that the Commission did not need to hold the hearing planned for 22 April 2005, as the Government advised the Commission that it was changing its mandate to address the issues of concern to the Commissioners, in particular the concern about the work of the Commission prejudicing criminal proceedings. One of the key new directions was that the Commission should limit its public hearings and carry out its investigations in private. The altered mandate was promulgated by the Order in Council of 2 May 2005.


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21. What changes did the 2 May 2005 Order in Council make to the Commission?
There were a number of key changes made to the Commission in May 2005. In particular the Commission was directed by the Government to
  • conduct its preliminary investigations in private and limit its public hearings
  • make its findings of a more general nature than those envisaged at the time the Commission was established
  • not investigate any complaints that were the subject of current or ongoing investigations by the Police
  • not investigate any complaints that were the subject of criminal proceedings before the courts
  • not give the names or any particulars that were likely to lead to the identification of the person who made the allegation of sexual assault
  • not give the names or particulars of any person alleged to have committed the sexual assault.
The 2 May 2005 Order in Council also appointed Dame Margaret Bazley as the sole Commissioner as the Hon Justice Robertson asked to be discharged because of time pressures from his other commitments.


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22. Why did the Government make these changes?
These changes were made so that the Commission could continue its work without prejudicing the criminal investigations and the criminal proceedings that were under way. The alternative could have been for the Commission to be adjourned until after completion of all related criminal proceedings, or discharged.


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23. What has the Commission done since May 2005 when its mandate changed?
Since May 2005 the Commission has
  • reviewed all the relevant Police investigation files on complaints of alleged sexual assault by Police or by Police associates made since 1 January 1979
  • identified issues and trends arising from the Commission’s review of these files
  • reviewed all the relevant Police policies and procedures in place since January 1979
  • heard evidence from the then Police Commissioner, Commissioner Robinson, and other police officers regarding the standards, procedures and practices that have been in place within the New Zealand Police during the period in which the Commission has an interest
  • heard evidence from individuals with experience or expertise in matters relevant to the Commission’s terms of reference
  • heard evidence from some of the submitters who had approached the Commission in 2004.


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24. Is information from the private hearings available to the public?
No, the hearings were held in private as directed by the 2 May 2005 Order in Council and all evidence and material presented at these hearings is covered by Confidentiality Orders.


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25. Will transcripts from the hearings be available publicly?
No, the transcripts will not be available publicly as the hearings were held in private and all evidence and material presented at these hearings is covered by Confidentiality Orders.


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26. Is the Commission of Inquiry into Police Conduct covered by the Official Information Act?
No, evidence, submissions and reports received by commissions of inquiry are not subject to the Official Information Act.


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27. Is the Commission considering those cases of police officers or former police officers that are currently or have recently been before the courts?
No, the Commission is not considering any of the cases that are or have recently been before the courts. The Commission is specifically prohibited by its 2 May 2005 Order in Council from investigating any case that is the subject of prosecution or ongoing investigation. The Commission is not, for example, able to consider the complaints made by Ms Nicholas about the Police investigation into her case.


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28. What will the Commission’s report be like?
As directed by the Government, the Commission’s report will be focused on Police policies and procedures and will not include findings on individual submitters’ complaints. The Government’s 18 February 2004 Order in Council directed the Commission not to determine the guilt or innocence of any particular individual in relation to any alleged sexual assault; and the 2 May 2005 Order in Council directed that the Commission’s report be of a more general nature than was envisaged when the Commission was first established in 2004. As a consequence the report will not take any particular view of the merits of the submitters’ original complaints to the Police.


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29. When is the Commission due to report?
The Commission is due to submit its report to the Governor-General by 30 March 2007.


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30. Why were the parties given a copy of bits of the Commission’s draft report?
The parties were given a copy of bits of the draft report as part of the process of ensuring fairness and accuracy. Under the rules of natural justice, persons (including any parties) who are potentially adversely affected by the Commission’s findings must also be given an opportunity to comment on those findings before they are finalised. Commissions of inquiry must ensure that they do not breach the principles of natural justice. Apart from unfairness including potential harm to people’s reputations, a failure to comply with natural justice makes a Commission’s findings vulnerable to being overturned by the courts.


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31. What are the principles of natural justice to which commissions of inquiry must adhere?
Section 4A(2) of the Commissions of Inquiry Act says that, where any person satisfies the Commission that that person may be adversely affected by evidence given to a commission, that person must be given a reasonable opportunity to be heard “in respect of the matter to which evidence relates”. This is a reflection of the law known as the “principles of natural justice”.

Natural justice requires that no party is treated unfairly by the Commission in the way it runs the inquiry or states its findings. Because of the powers Commissioners hold during an inquiry, it is crucial for natural justice concerns to be properly dealt with. This is not just because it is fair that someone who is criticised has an opportunity to respond to that criticism, but also because there may be more to the matter than the Commission is aware, and it gives the affected person a chance to draw further relevant information to the Commission’s attention. This better ensures a fair and accurate report. A failure to observe the principles of natural justice could be grounds for a judicial review by the High Court of the Commission’s procedures, and potentially undermine its findings. For this reason all Commission procedures have to be reviewed against the requirement for fairness throughout the course of an inquiry. One of the key principles of natural justice is that any person (including a party) subject to adverse comments must have the right to respond to them in the course of the inquiry. For this Commission, this is being done by sending the draft report to the parties for comment. This is an important part of the process, which has been largely investigative (ie the Commission considering the historic files) rather than focusing on formal hearings.


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32. Why have submitters not received a copy of the Commission’s draft report?
The nature of the Commission’s terms of reference, as amended by the Government, mean that there is no basis to provide any submitter with a copy of the draft report. As directed by the terms of reference, submitters are not and will not be subject to adverse findings or recommendations in the Commissioner’s report. If they were, that part of the draft report would have been made available to them in the same way it has to the parties, pursuant to the requirements of natural justice.


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33. Why has the Commission’s reporting date been extended?
Among other reasons, because the Commission has received a large volume of complex evidence during the inquiry which is still the subject of comment by some of the parties. This evidence has had to be analysed by the Commissioner and her report prepared based on her analysis of the evidence. The requirements of natural justice means that the Commission’s processes must allow the parties to the inquiry adequate time to present all their evidence, to make submissions and also to be able to respond to any adverse findings in the Commissioner’s report. The Commissioner in turn must give due consideration to the parties’ responses. This is the process that is currently under way and that must be completed before the Commissioner can finalise her report.


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34. Can the Commissioner make interim reports prior to presenting her final report on 30 March 2007?
Yes, under the 18 February 2004 Order in Council, the Commissioner is able to report on her proceedings and recommendations from time to time if she thinks it appropriate to do so.


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35. Will the final report be available to the public when it is presented to the Governor- General?
The Commissioner is directed to submit her report to the Governor-General. When submitting her report to the Governor-General, the Commissioner will provide advice to the Government on matters relating to the release process for the report that are unlikely to be within the Government’s knowledge. Once the report is submitted it will be up to the Government to make decisions on the public release of the report, including the timing of publication, and to manage the publication process.


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36. Will the submitters be given a copy of the Commission’s report before it is made public?
As advised above, it will be up to the Government to make decisions on the process for releasing the Commissioner’s report. The Commissioner will advise the Government about the need for those persons who have assisted the Commission’s work to receive their own copy of the report once it is made public.


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37. Who has seen the Commission’s draft of the final report?
No one outside Commission staff and advisers has seen the draft report in its final form. Last year, in 2006, the parties saw early drafts of the bits of the report that may have adversely impacted on them (see Q. 30). They have not seen the draft in its final form.


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Last updated: 26/03/2007