THE PRESS SATURDAY, OCTOBER 22, 1983. Privy Council’s decision

Press, 22 October 1983, Page 16

THE PRESS SATURDAY, OCTOBER 22, 1983. Privy Council’s decision

The decision by the Privy Council on the appeal by the Royal Commissioner in the Mount Erebus air crash inquiry did nothing to alter the basic findings of the inquiry. The judical committee of the Privy Council has made this clear, and the precise nature of the appeal by Mr Peter Mahon was never likely to alter his basic findings, whether he won the appeal or lost it.

The committee’s injunction to let bygones be bygones will seem to most people to be a thoroughly appropriate sentiment. Had the committee supported Mr Mahon’s appeal it could well have expressed the same sentiment. In such circumstances, acceptance of the view would not have been so easy because sustaining the appeal would have appeared to endorse Mr Mahon’s stern criticism of some witnesses.

The decision has made clear that the rules of natural justice must apply in the conduct of a commission of inquiry. This was the nub of the matter taken to appeal. To the layman, such a point seems almost too obvious to have to be made at all, especially as a result of a long and complicated judicial hearing at the highest level. In the formal, judicial context, the application of such rules is not the simple matter that the ordinary citizen might suppose. The committee has commented that saying a person with judicial office had failed to observe a rule of natural justice might sound, to a lay ear, as if it were a severe criticism of his conduct. “But this is far from being the case” the judgment says. The criticism is wholly dissociated from any moral overtones, and, according to the committee, the dismissal of the appeal cannot have any adverse effect upon the reputation of Mr Mahon.

Another feature of the decision lies in the committee’s tribute to the Royal Commission’s “brilliant and painstaking investigative work,”

and in the committee’s comments on the pressures of time to which Mr Mahon and his assistants were subjected. The committee blames this for the emergence of piecemeal evidence when the proposal for advance and written briefs of witnesses was abandoned; and to this change, the committee attributes unfortunate effects on Mr Mahon’s view of the “stance” of Air New Zealand’s management. Whatever weight can be put upon this interpretation or explanation of how the Royal Commission became “vulnerable to judicial review,” another point about the inquiry should be added. Contrary to many precedents, the appointment of one person alone, notwithstanding his legal and technical assistants, to carry the whole burden of assessment and decision was an extraordinary decision. An inquiry of such moment, complexity, contradictions, technicality, and personal stresses can be seen now, and was seen as it progressed to be an unusually heavyburden for one set of shoulders, however able they were.

The cost of this legal exercise falls on the taxpayer. From the outset, the Government had an inescapable duty to see the matter through, not just in support of the Royal Commission it had appointed, but because the legal issues had to be determined. As the Privy Council has made plain, this was not essentially a matter of Mr Mahon’s reputation, though any person in his position would see the Court of Appeal case and decision as a challenge to his wisdom. Apart from this, the broader issue had to be taken, by the State, to a conclusion, and to one, it must be hoped that will tidy and seal a long and sad business. Though most people may agree with the sentiment, that bygones should be bygones, many lessons were learned from the inquiry itself and from its legal aftermath. These stand to serve, not be forgotten.