What is a Court of Inquiry?
A Court of Inquiry (COI) is a court established under Section 200A of the Armed Forces Discipline Act 1971 (AFDA). Its purpose is to provide an officer in command with ‘an expeditious fact finding procedure so that a matter can be promptly investigated and if necessary, prompt, remedial action can be taken’. The procedure of a COI is provided for in Part 11 of the AFDA. A COI can be conducted into any matter that an assembling authority directs. There are certain incidents where it is mandatory to conduct a COI. A COI must occur when a service person dies or is seriously injured in the course of his or her duties, unless the death or injury occurred during armed conflict; or where an incident is investigated as a disciplinary matter.
COI have a greater status in law than command investigations and therefore offer certain protections which command investigations do not.
The officer in command of the relevant part of the Service or Joint Forces is normally the Assembling Authority.
A COI must consist of no less than two members, of whom at least one must be an officer who is the President and the other/s must be officers, warrant officers, or members of the NZDF Civil Staff of equivalent standing.
It is a common misperception that because of the name 'Court' in Court of Inquiry, that a COI is a disciplinary body. A COI is a fact-finding exercise used to determine the truth. A COI will routinely, in discovering the truth, apportion blame for events, however a COI cannot perform disciplinary functions where blame is found such as finding a person guilty of an offence. A COI may make recommendations such as to conduct a disciplinary investigation, which could lead to a summary trial or Court Martial with disciplinary outcomes.
Operation of a Court of Inquiry
The Assembling Authority prescribes terms of reference that the COI must address when collecting and recording evidence about the matter being examined. If required, the COI reports and comments on these matters. The Assembling Authority also comments on the report and any recommendations. The evidence collected and any report and comment by the COI is contained in the record of proceedings.
Release of Court of Inquiry Reports
A COI sits in private and records the evidence of every witness. If a COI is to achieve its purpose of determining the facts and carrying out prompt remedial action, total frankness is required of witnesses. This is particularly important in mitigating operational impact. COI are therefore afforded a large measure of confidentiality and this is recognised by statute. Section 200 T of the Armed Forces Discipline Act 1971 prohibits release of the record of proceedings (ROP) within the NZDF unless NZDF personnel need to see the ROP in the course of their duties, and requires the approval of a Superior Commander of the Service before any release to people who are not members of the NZDF.
Within this constraint, where a COI concerns a matter of high public interest the NZDF will assess the circumstances on a case by case basis, balancing the relevant factors to determine whether any redacted COI report or summary can be released.
Relevant factors will include:
- High public interest;
- The rationale for maintaining confidentially;
- In the event of a fatality, the wishes of family representatives and the privacy of individuals; and
- The maintenance of New Zealand national security and other relevant privileges.
It is important to note that, under subsection (h)(iii) of section 2(1) of the Official Information Act (OIA), evidence given and submissions made to a COI do not constitute official information and are not therefore subject to release under the OIA.
In addition, the Ombudsman has ruled that it is legitimate to withhold material within scope of the terms of reference pending the outcome of the COI. While a COI is assembled, any information that is ‘held’ by the NZDF that is relevant to the COI’s terms of reference has the capacity to become evidence or submissions. This situation continues to apply until a COI completes its task.
External Legal Review
The Assembling Authority may consider that the circumstances of a COI are so serious and significant, and/or of such high public interest, that it warrants an external legal review to provide independent legal assurance. The external legal review panel comprises three Queen's Counsel, under the Office of the Judge Advocate General.