11.10. INQUIRY POWERS AND PUBLIC HEARINGS One question to be considered in preparing for the public hearings is whether and when the inquiry’s powers of enforcing cooperation should be exercised. NHRIs have significant powers to enforce cooperation with their processes, including power to require the attendance of witnesses, to compel evidence, to take evidence under oath, to obtain documents and to enter premises. Usually the NHRI’s statutory powers can be exercised during the course of a national inquiry, either through the inquiry directly or by delegation or by the NHRI itself on behalf of the inquiry. The question for the inquiry is whether it is appropriate to exercise these powers and, if so, under what circumstances. Generally speaking, witnesses are more helpful to an inquiry when they appear and provide evidence voluntarily, that is, without compulsion on the part of the inquiry. A willing witness is generally a helpful witness but an unwilling witness may be hostile and obstructive. The inquiry is better served, therefore, by persuading witnesses to give evidence rather than compelling them to do so. Nonetheless, there will be circumstances in which compulsion is necessary. It may be necessary to ensure the appearance of an unwilling person who has information critical to the inquiry that cannot be obtained from other sources. It may be necessary to enable the inquiry to put incriminating evidence to the witness so that the witness has an opportunity to respond. It may also be necessary where the witness is willing but fearful of reprisals after giving evidence. For example, a witness who wants to give evidence may fear retribution from a superior or an employer and so asks the inquiry to compel attendance so that the witness can claim to have spoken out only because of the statutory compulsion. Compulsion can offer a measure of protection to witnesses. Similar issues arise in relation to the exercise of powers to obtain documents. However, they are less complex. It is better to proceed cooperatively and obtain documents by consent. Where there is cooperation, the inquiry may be able to obtain far more material than a technical legal order might cover. In this way, cooperation can yield more. However, the use of compulsion to obtain documents is less problematic than compelling a witness to give evidence. Documents are not capable of being alienated and becoming obstructive or hostile as a person is. There is less risk and less cost in using statutory powers to obtain documents than in using them to require someone to appear before the inquiry and give evidence. The power to take evidence on oath also raises issues. Criminal justice systems provide penalties for giving false information on oath and so requiring a witness to take an oath or affirmation can provide greater assurance that the evidence given is true in all respects. However, a witness can still lie under oath. It is not an absolute guarantee of truth. Most laws establishing NHRIs impose penalties for providing false information to the NHRI, whether or not it is given under oath, and so requiring an oath is not essential to impose a penalty for the provision of false information. However, where an inquiry decides that evidence should be given under oath or affirmation, it should impose that requirement on all witnesses to avoid giving the impression that it considers some witnesses trustworthy and some not. Evidence given under oath or affirmation is generally regarded by the Government, the media and the public as more reliable and credible. Chapter 11: Conduct public hearings | 55