Commentary on Provisions Formal investigations Sections 8 and 9: Initiating a formal investigation
17.Sections 8 and 9 deal with setting up a formal investigation. The Commissioner can look into matters without setting up a formal investigation (see section 8(3)), but by initiating a formal investigation into an issue the Commissioner is able to exercise the information-gathering power that section 13 provides and can impose a duty to respond to recommendations made at the end of the investigation under section 11.
18.Section 8(1) provides that a formal investigation begins when the Commissioner makes its terms of reference publicly available. Section 9 sets out minimum requirements for what must be included in an investigation’s terms of reference, and requires that before finalising an investigation’s terms of reference the Commissioner must at least consult the Commissioner’s advisory group (see section 16).
19.As soon as practicable after a formal investigation begins, section 8(2) requires the Commissioner to take reasonable steps to bring the investigation to the attention of anyone upon whom the Commissioner anticipates imposing a requirement to supply information under section 13 during the course of the investigation or a requirement to respond to a recommendation under section 11 at the end of the investigation.