In recent times Parliament has shown an increasing concern that natural justice should be observed by Commissions. In 1958 s. 4A was inserted in the Commissions of Inquiry Act 1908, expressly giving any person interested in the inquiry, if he satisfied the Commission that he had an interest apart from any interest in common with the public, a right to appear and be heard as if he had been cited as a party. Then in 1980, just as the Erebus Commission was about to start, the section was replaced and strengthened. The main changes made are that any person who satisfies the Commission that any evidence given before it may adversely affect his interests must be given an opportunity to be heard in respect of the matter to which the evidence relates; and every person entitled to be heard may appear in person or by his counsel or agent. In giving this right to representation by counsel the Legislature has gone further than observations made in this Court in the State Services case at pp. 105, 111 and 117.
Some statements in the judgments in that case are very relevant to the present case. They are also entirely consistent with the spirit of the changes made by Parliament in 1980. Gresson P. at p. 105 and North J. at p. 111 both gave an inquiry into a disaster as an example of the kind of inquiry where the requirements of natural justice would be more extensive than in inquiries into a general field. Cleary J. stressed at p. 117 that, while Commissions have wide powers of regulating their own procedure, there is the one limitation that persons interested (i.e. apart from any interest in common with the public) must be afforded a fair opportunity of presenting their representations, adducing evidence, and meeting prejudicial matter.
In both the Licensing and the State Services cases the Commissions were presided over by Supreme Court Judges. It is implicit in the judgments that this status on the part of the Chairman does not emancipate a Commission from judicial review on jurisdictional or natural justice grounds. We hold that the position can be no different when a High Court
Judge is sole Commissioner. He will, however, have the powers, privileges and immunities mentioned in s. 13 (1) of the Commissions of Inquiry Act. For instance he will have immunity from defamation actions.
A further important point, clear beyond argument, is that an order for costs made by a Commission under s. 11 of the Commissions of Inquiry Act is the exercise of a statutory power of decision within the meaning of the Judicature Amendment Act 1972. Accordingly it is subject to judicial review. The judgments in this Court in Pilkington v. Platts 1925 N.Z.L.R. 864 confirm that if an order for costs has been made by a Commission acting without jurisdiction or failing to comply with procedural requirements the Court will by writ or prohibition or other appropriate remedy prevent its enforcement. We add that, notwithstanding an argument by Mr Harrison to the contrary, we are satisfied that s. 11 was the only possible source of the Commissioner's power to award costs and s. 13 was not and could not have been invoked.
The order for costs under challenge in the present case is the Commissioner's order that Air New Zealand pay $150,000 by way of contribution to the public cost of the inquiry. In our view there can be no doubt that this order is and was intended to be, in the words of Williams J. delivering the judgment of this Court in Cock v. Attorney-General (1909) 28 N.Z.L.R. 405. 421, '... in fact, though not in name, a punishment'. What is more important, although Mr Baragwanath argued otherwise we have no doubt that reasonable readers of the report would understand that this order is linked with and consequential upon the adverse conclusions stated by the Commissioner in the section of the report headed by him 'The Stance adopted by the Airline before the Commission of Inquiry'. It is true that the reasons for the costs order open with a proposition about unnecessarily extending the hearing. But the passage develops and the later reasons go further. The words chosen convey that the punishment was not simply for prolonging the hearing. In particular the statements about cards in the pack are a reversion to the theme of the 'Stance' section, with its exceedingly strong allegations in paragraph 377 of 'a pre-determined plan of deception' and 'an orchestrated litany of lies'.
Applying the well-settled principles already mentioned, we think that if in making those statements the Commissioner exceeded his terms of reference or acted in violation of natural justice, the costs order is not realistically severable from that part of the report and should be quashed. For the purposes of the present case that is sufficient to dispose of the argument based on Reynolds v. Attorney-General (1909) 29 N.Z.L.R. 24 that after a Commission has reported it is functus officio and beyond the reach of certiorari or prohibition.
Naturally the stance of the airline at the inquiry directed by the terms of reference was not included expressly in those terms. The argument presented in effect for the Commissioner on the question of jurisdiction is that comments, however severe, on the veracity and motives of witnesses were incidental to the carrying out of the express terms. We accept unhesitatingly that what is reasonably incidental is authorised (as was recognised in Cock's case at p. 425) and also that to some degree any Commission of Inquiry has the right to express its opinion of the witnesses, much as a Court or statutory tribunal has that right.
But we think that it is a matter of degree. For present purposes it is not necessary to decide whether the law of New Zealand is still, as held in Cock's case, that a Commission of Inquiry cannot lawfully be constituted to inquire into allegations of crime. That issue may be raised more directly
by the litigation regarding the Thomas Commission. The issue now to be decided is whether the Commissioner had powers, implied as being reasonably incidental to his legitimate functions of inquiry into the causes and circumstances of the crash, to make assertions amounting to charges of conspiracy to perjure at the inquiry itself.