Making Inquiries
Erebus
On my office bookshelf sits a copy of the Report of the Royal Commission to inquire into The Crash on Mt Erebus, Antarctica of a DC10 Aircraft operated by Air New Zealand Limited, 1981. Well, actually on the floor that serves for a shelf. Next to it sits Verdict on Erebus, a later book by the Commissioner, Hon Justice Peter Mahon.
I keep a copy of the Erebus Report because to me as a lawyer, through my years of reading cases in law school and into various offices, this work stands head and shoulders above others as a masterpiece of finding, assembling and dissecting evidence to figure out the causes of an event.
The Erebus report is emblematic of legal reasoning at its best, a kind of marker for the possibility of how well one might aspire to operate. And although I probably mythologise from this vantage point so long after, it also seems to represent a fearless faith in truth. Not a bad thing to believe in. No doubt there are similarly extraordinary efforts from other people in other times and places, but a final part of Mahon’s report that strikes so hard is that it was produced in a New Zealand milieu that is still possible almost to taste – he could almost be your neighbour.
Although he had assistants, Mahon was the sole Erebus Commissioner. His Commission was asked to focus on surfacing facts – on “what was” – before and after the fateful Flight TE 901 on 28 November 1979. In this he did an extraordinary job, not only in that he was careful enough to credibly differ from an earlier accident investigation report made by the Chief Inspector of Air Accidents, Ron Chippindale. To the modern sensibility, it is perhaps all the more extraordinary that Mahon was no aviator nor even assisted by one.
Of course, some of Mahon’s conclusions were seen to move into passing judgement what ought to have been, and ought not to have been, in the leadup and aftermath of the flight. He found fault with the actions of Air New Zealand ground staff, and he passed comment on the airline’s post-accident conduct. Today perhaps the Commission’s best-known comment is the view that airline witnesses gave the Commission an “orchestrated litany of lies” through its 75 days of proceedings.
Having made that conclusion without first putting it to witnesses got the Commission itself into very hot water, landing and effectively failing in the Privy Council. The upshot was that while Mahon’s findings about the cause of the crash were virtually intact, his Commission had effectively been found to have breached the rules of natural justice – emphasising that commissions have certain judicial-like duties. A war of sorts ensued between Mahon and then-Prime Minister Hon Robert Muldoon. Mahon himself died in 1986, and Muldoon in 1992, but these events contributed to years of delays in official responses, paining crash victims’ families. It was only in 1999 that the report was tabled in Parliament, in 2009 that Air New Zealand issued an apology, and 2019 that the government issued a formal apology to the victims of families. Even today plans for a national memorial – slated for a Parnell garden – have not been settled, arguably foundering on the rocks of NIMBYism sometimes heard of in that part of Auckland.
The fallout of flight TE 901 and subsequent Commission affected many lives. Their effects on just one life are exquisitely articulated by Mahon’s son, Sam, in his book In the Shadows of My Father. The title is apt, describing exactly the book’s tenor. Some of the way Sam contended with those shadows is described in his poetic Year of The Horse. Both are classic self-portraits in a way, and anyone with parents will be able to see something of themselves in Sam. But almost needless to say, Sam had a very specific connection to Flight TE901, and was not one whose family was touched by the loss of a loved one on 28 November 1979. There are myriad published accounts from victims’ families. These accounts can draw a lot out in many New Zealand families, who still hold memories of the event and their connections to it – my own included.
March 15
Doubtless Erebus is starting to fade from the living cultural memory, but we might tell a similar story about Friday, 15 March 2019.
Before that date, and to me personally, Deans Avenue had been the scene of many small triumphs and tragedies over the years – I had enjoyed some early times with my wife on the touch rugby fields next door, but also ripped my calf down by the corner. I rode my bike past El Noor Mosque that morning, as I did every morning at the time. We finished the afternoon under lockdown in the Registry building at Canterbury University, where I worked. The sight of thousands in a sunny Hagley Park the week later, and of grown Canterbury men crying in public, will never leave me. Nor will the poignant sense of mixed grief, defiant pride and togetherness in that hung in air. Since that time, events on Deans Avenue have touched us all.
Another remarkable judicial document it the relevant sentencing decision of Justice Mander in August 2020. [1] Like the Erebus report, it is another reminder of the extraordinary public service we ultimately ask of our judges, and so of why it is distasteful to criticise them in the way some have recently. But this document is truly remarkable for a different reason than most judgments: for its human quality. It brings us painfully close to the losses that day, and is much too painful to keep in the office.
Of course, “March 15” attracted its own Royal Commission. Here the facts of the immediate event were crystal clear, and the focus was more on the possibility of omissions that had contributed to its coming to pass. As such this commission focussed much more on questions of “how?”, in a sense what ought to have been but wasn’t, and what to do to prevent a “next time”.
Unsurprisingly, all but a few got behind the various gun-related recommendations at the time. But questions of “ought” are never settled. So whether we think them good or bad, well-motivated or touched by uglier lobbying, it was surely predictable that some of the gun-related aspects are now back in the air through Nicole Mckee’s gun stuff.
I don’t know anything about the substance of that stuff, and whether these are the right things to revisit given scarce time and resources, or whether they’re just political actions, who knows?
To me at least they seem likely to be a relative side show. Out of the March 15 Commission I took two things. First: assumptions that a state can, and ought, to be able to prevent events like March 15 are interesting and consequential. If we say a state both ought be able to, and ought actually to, “prevent” such atrocity, there will be trade-offs involving questions of surveillance and security, media, communication technology and the like. Second: commissions are far better suited to telling us what is true than what is good.
Covid-19
These kinds of things were bouncing around in my head with the recent flurry of news on the “Royal Commission COVID-19 Lessons Learned.” Internal Affairs Minister Brook van Velden would “sit on” the Phase One inquiry report until the Phase Two report had been completed. Part of the background was disagreement on whether the Phase One Terms of Reference were wide enough (for what it’s worth I thought not).
As was to be expected, there were accusations from opposition MPs that this was outrageous. The notion seemed to be that this was a political stunt because the Phase One report would “prove” that the government’s actions achieved some end – perhaps “20,000 lives saved” or the like – such that a more critical Phase Two was required to balance this out. Of course, that would be distastefully cynical if it were true, but we will never know. Mistrust has been obvious, but we can only hope (and perhaps even trust) that the previous government didn’t try to do that, that van Velden is better than that, and that Royal Commissioners would not allow themselves to be so used.
Of course, mistrust is of a piece with many experiences of those times. We will all recall that solidarity and generosity of spirit were part of the early Covid experience. It was not unlike that some of the currents in Hagley Park that late summer Friday the week after March 15. Whatever we thought of the response then or now, we will also recall the early sense evaporating, and ultimately being left with painful sights of Parliament’s grounds burning and New Zealanders beating each other up.
So there are any number of things to say about the Royal Commission COVID-19 Lessons Learned. I’ll just say that in both its phases, it seems to be concerned much more with what ought to have happened than what did happen, much more in a sense with what was good. This seems more than any commission could bear.
What happened
The Erebus experience tells us that a commission’s work could be very thorough, but it may be too soon to hear what it has to say. Sometimes we need time to handle the truth.
On the “what was” side with Covid, this seems almost certain to be the case - there are undoubtedly still very serious differences of view in the community. These difference led to the only street violence an entire generation has known. They need time to mellow.
But more than that, Covid was not an aircrash. “Relevant” information is not confined to a small number of actors and a small time period. Arguably, “relevant” information takes in the entire global experience for many years. Even looking back in time before the emergence of SARS-CoV-2, putting a solid boundary on things is hard enough. But then we might ask whether “the effects” of Covid-19 are even over, in any domain of life? At my end alone, I could say that a family member just had it, a friend has the long version, my house is over-priced, facial recognition technology is far more commonplace than it seems to have been, as is WFH. In short it’s going to be decades before we understand “what happened” with Covid. What does fact finding mean in these kinds of circumstances, and what could it mean to judge a response?
All this surely doesn’t mean “don’t ask”. But it surely does mean that differences of view about appropriate terms of reference - as between successive governments - are inevitable and reasonable. But while asking for a commission implies a want to know something relatively certainly, a fuzzy boundary for “relevance” must also imply a limitation in the possibility for our knowledge. Will a Commission be able to own the provisional character of many key findings? Should we have asked it to inquire if it won’t be allowed to express uncommitted views? Are the more concrete things it can tell us even going to be interesting?
We will see. All told the Covid inquiry seems too soon. This is not only because we won’t handle “the truth”, but because the truth is still unfolding.
The place of experts
Returning even to the relatively narrow theme of experts in fact-finding, we might recall that notions of “trust the experts” or “follow The Science” or “misinformation” proved to be lightning rods in the public Covid discourse. All could sustain useful discussion in the Covid context, with the appropriate generosity of spirit.
With our generous-spirited expertise discussion underway, we might notice that while Mahon was not assisted by an aviator in 1981, today’s Commissioners included an epidemiologist. Was this necessary or desirable to establishing the facts of the pandemic in New Zealand? Was it only that Mahon dealt with a single air crash and relevant events over periods of weeks, whereas Covid was a national experience over months and years? Or are we looking at a change in attitude over that generation?
While of course Covid is obviously too big for any one person to handle, I think we’ve got some of the latter: a change in attitude about expertise. That’s not necessarily an issue, except that some of the certainties about the proper place of experts in the 2024 Commission, certainties that are latent in the decision to include an epidemiologist, seem already to have gone unexamined.
I make no suggestion of my own about this, and fully recognise that even if I did my little view matters not one jot (not least because I didn’t submit on the enquiry).
Nonetheless, I offer that Mahon’s report may gesture at a path not taken with respect to expert witness policy over the past generation: he showed that very complex fact-finding missions can be determined by a non-expert who carefully and rigorously works their way through things. And even more, Mahon did not leave these certainties unexamined for himself. While some saw his decision to accept a Royal Commission on his own as hubris, his views on expert witness opinions seem to have been cultivated over many years of practice, and may have influenced his decision. Some of these views are on record, and they are essentially critical of the role of experts offering opinion evidence.[2] These criticisms are persuasive, and he managed them without the expert-trashing we sometimes hear associated with these viewpoints today. Although Mahon seems to offer little in the way of alternatives to trusting in judges,[3] it seems a shame that these kinds of views bore so little discussion in the leadup to establishing the Covid inquiry.[4] What, really, is with the rush?
What we ought to learn from the Covid response
We might notice that questions of “ought” seem to be well within the scope of the relevant parts of the Inquiries Act 2013. Governments are “allowed” to ask them. But are all questions of ought really appropriate to commissions - bodies that are essentially geared to find facts?
My view on the “ought” side of the Covid inquiry is a bit stronger than on the “is” side. What we really want to know from the Commission is whether our response was good. And while we are allowed to ask Commissions about that, we really know - or ought to! - that judges or lawyers cannot tell us what we “ought to have learned” from Covid-19. Nor could scientists presenting their ever-provisional propositional knowledge of the world. All this is especially so if they can’t even tell us “what happened” yet. Asking these people “what to learn”, right now, is in this sense just like 2020. It is a kind of repeat of the rush to achieve certainties that cannot be had. As such, whatever it says, the Covid inquiry is almost certain to meet the same fate as some of the March 15 issues.
For what it’s worth, I’m not suggesting the Commission be widened to include economic or even political considerations. Both would have a place but neither are really big enough for what must ultimately be questions about our relationship with ideas of “life”, “death”, “health”, what is “good” and so on. I think a better place to start with these sorts of things – rarefied though some may find it – is with philosophy. For that reason, I’ve personally been drawn to authors asking those sorts of questions without having been given a Royal Commission.
Although now written a few years ago, a very interesting and at times almost poetic treatment I’ve mentioned before has come from Paul Kingsnorth in 2021. It is drastic, but were any of his predictions right? Another take from David Cayley is if anything even more thought provoking, with interesting examples here (October 2020) and here (a year later). It goes virtually without saying that in our age of information explosion, I won’t have scratched the surface.
Abuse in Care
The Royal Commission on Abuse in State Care and Faith Based Institutions has just reported. I haven’t mentioned this because I know virtually nothing about it. I can see that not knowing much about such abuse is something to feel fortunate about.
A lot of questions for this inquiry were about “what was” - about what happened to survivors of abuse in care. Let’s hope it isn’t “too soon” to have these findings in the public domain, like with Erebus or Covid. This is not a report that should collect dust.
With respect to “what to do” about this Commission’s findings, one obviously wants to tread very softly. Lives have been ruined, so inevitably some will make calls for justice. And, no doubt, there should be justice in individual cases, as justice might bring closure to some. But it can’t change the past - so if the Abuse Report is to achieve anything at all, something else will have happen over and above mere justice. For this sort of reason, some will inevitably also make calls for the state to offer more protections, a bit like after March 15. Perhaps some sensible suggestions of detail can be made.
To me though, these responses will again be too small to contend with the real issues. That’s because “the State” didn’t actually do anything to anyone. The State is an idea, operated and animated by us. Which means the Abuse Report is more like a mirror than perhaps we might care to admit: it details us mistreating us. If we want “no repeat” of what the Abuse Report found, then, we’ll ultimately need to look to ourselves rather than the state.
The Abuse Report contains some painful truths, the opposite of good truths, about us. In this way, it might gesture at something far better than the possibility of state interventions or even justice. It might even gesture at some of the more beautiful possibilities when humans have a change of heart for the better.
Finally
Finally and unrelatedly, a shout out to Natailia Albert’s recent defence of centrism, and to Grant Duncan for his recent positivity and suggestion that when we talk big issues through, we often find “we’re not so far apart”.
Finally Finally
This installment is a couple of days late because I am working through the requirements to start my own law practice. To be clear, I have not finished these processes and am not yet operating. However, feel free to reach out to chat if you’re interested in what I’ll be doing when I set up.
Thanks again for your interest in Brenty’s Two Cents.
[1] I won’t link to it but those interested can find this at [2020] NZHC 2192.
[2] See for example Expert Evidence [1979] NZLJ 123.
[3] A plea that is of a piece with his strong views about judicial restraint, evident elsewhere and also not so commonly articulated today.
[4] Recent Law Commission attention to these expert evidence issues was welcome though narrowly confined (see IP 42, Law Commission March 2018). The Commission was only allowed to look at the operation of the Evidence Act 2006, and was unable to examine some of the first principles issues I’ve discussed here.