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www.peterellis.co.nz
March 8, 2004
Editorial: Opinion
Commissions of Inquiry: Competence of
Commissioners
In recent years
there have been a number of Commissions of Inquiry on a number of matters. It
is almost becoming routine for a Commissioner to be chosen from the ranks of
retired Judges, such as Eichelbaum in the Government Ellis Inquiry in 2000.
The practice has come about because Judges are likely to have the respect of
the public, and they are seen to have special skills in analysis, from their
experience of being a judge.
There are however significant concerns with this practice.
Firstly, Judges have not necessarily got any particular skills in the process
of investigation. The role of Judge refines a person's skills in analysing
data and information given to them, and in coming to a decision based on the
facts that they are presented with.
But their experience is not in the field of original
investigation. The news presented on www.peterellis.co.nz on the 7 March
shows how Judge Eichelbaum clearly had difficulties doing an independent
investigation. Presented with his role of Commissioner, he abdicated the role
of investigator and instead relied on Ministry of Justice staff to tell him
who he should listen to as experts, and who he should go to for advice. The
Government and the public of New
Zealand were ill served. They could have received a much swifter,
and much cheaper outcome by asking the Ministry of Justice officials for
their opinion.
A second concern is the practice of appointing a sole judge for such
Commissions of Inquiry. If a
Commissioner proves to be less competent than required in some particular
aspect of the Inquiry, either in the process of investigation, or in some
technical aspect of of the inquiry, there is less likelihood that the
credibility of the Inquiry itself will later be called into question. In the
Eichelbaum Inquiry, Judge Eichelbaum had difficulties with investigation as
stated above. But he also had
difficulties in understanding the latest developments in the science of child
suggestibility. This is most clearly
demonstrated by his turning to Professor Thomas Lyon as his significant
advisor as to who to appoint as his "expert advisors", without
appearing to understand where Lyon was
placed himself in the scientific debate. .
One could liken his actions to Red Riding Hood asking the Wolf for
advice.
The answer perhaps is to appoint more than one Commissioner, especially where
there are significant technical issues, or where there is a significant
degree of independent investigation required.
And to ensure that all of the skills required of a commissioner for
any particular inquiry are shared between the Commissioners selected.
The Government does no service to anybody by promoting retired judges to
their level of incompetence. It seems
a pity that Eichelbaum appears destined to be remembered for his role of
Commissioner in his severely flawed Ellis Inquiry, rather than for his
considerable experience and years as a Judge.
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