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Annual Report 2000 - 2001

Chief Commissioner's Overview

In previous annual reports I have spoken of the need to maintain the free flow of information to the Commission. Vital information from observers and participants prevents subsequent accidents. The 1999 amendment to TAIC's legislation protects the observers and participants, the primary sources of our information. Participants require protection from the real risk of providing evidence: the chance that the evidence is used against them. Silence is an enemy of effective investigation into cause in order to prevent a future accident and sources of evidence must be and are now well protected by the 1999 statutory amendment. Importantly, I can report that the legislation protecting sources providing evidence to the Commission is working. People are now more comfortable about volunteering sensitive information to the Commission's investigators. However, there is a particular nuance to this situation which ought to be identified in this annual overview.

The protection of information and its sources has certain implications as to how the Commission's reports are considered by those who wish to challenge findings: the protection of sources limits the Commission's capacity to expand on information in the report, because the Commission must not prejudice its sources. It is not the Commission's function to expose false and misleading evidence provided at other proceedings. This has caused occasional difficulties with Coronial Inquests. Coroners have a long-established and important role in determining the cause of death. They may also make recommendations for preventing similar occurrences, the same function as the Commission. Often the Coroner waits for the Commission's report on a fatal accident to be completed and then uses the report as evidence for the Coroner's inquest. In some cases this seems to help the inquest process. In other cases, production of the report merely sets the opening scene for legal and factual dispute. Anyone who believes the accident report shows they contributed to the accident can attempt to discredit the Commission's report. They may do this to protect their reputation, or minimise risks in pending litigation arising from the same accident. The protection accorded by the legislation correctly limits the Commission's ability to respond to such attempts. The public re-litigation of the Commission's report at an inquest is distressing for bereaved families who understood that the causes of the accident had been fully investigated and established.

Coronial inquiries may also independently investigate the causes of an accident and naturally that ancient office will be jealous to preserve its legal process of investigation. However, sometimes the Coroner does not have all the information available to the Commission and inconsistent findings can occur, as between the Commission and subsequent Coronial inquiries.

My comments on the Commission/Coroner interface are necessary because it is unlikely that a workable solution can be developed under current legislative conditions, despite the best attempts of the Commission and the Coroners' Council. Coroners are individually independent, and are not obliged to follow any Council guidelines, so it is impossible to develop a workable protocol which all 70 Coroners are likely to comply with. Legislative amendment may assist in this area. The Commission endorses the Law Commission's recommendation for a review of the law covering Coroners and that the position of a Chief Coroner should be created. The person occupying that position would provide an avenue for discussing and implementing a statutory protocol to bring more consistency and value to any involvement the Commission has in inquests, and the decisions to hold inquests. This should make it easier for Coroners and the Commission to perform their respective roles effectively for the benefit of the public of New Zealand, both in terms of cost and safety.

The future of the Commission depends on it demonstrating independence and impartiality, and the Commission records its appreciation of the respectful understanding successive Ministers of Transport have manifested to the Commission. Examination of State accident investigation agencies overseas shows that independence and public confidence are strengthened by the agency reporting directly to the legislative rather than the executive arm of government. In New Zealand, investigative bodies such as the Ombudsmen, the Commission for the Environment and the Office of the Auditor General report directly to Parliament. The Commission advocates that it too should report to Parliament, rather than through the same transport jurisdiction it is responsible for examining. A further value of such structural independence is that it would provide more direct resolution of concerns sometimes raised by about sufficiency of resources and the Commission's statutory obligations.

The issues mentioned above are important but do not impede in any way the present conduct of the Commission's duties. I am satisfied that despite questions concerning future resources to conduct its work, the Commission is robust and effective. However, like a transport operator in pursuit of greater productivity and a better safety record, we must continually question current operations and be alert to the potential for improvement.

Concluding this overview, Norman Macfarlane and I wish to thank co-Commissioner Phillipa Muir for her contribution to the Commission's work over the last 6 years. Phillipa's second term as Commissioner expires on 31 August 2001. We will miss Phillipa's penetrating contribution to debate on the issues raised by accident investigations and strong advocacy for clarity and coherence in accident reporting.

Hon W P Jeffries
Chief Commissioner

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