Labor's COVID-19 response inquiry lacks punch and transparency

Last week the Senate legal and constitutional affairs committee reported on its reference from the Senate last October to report on "the appropriate terms of reference for a COVID-19 royal commission that would allow all affected stakeholders to be heard".

After receiving nearly 600 submissions and hearing from health groups, the Human Rights Commission, legal experts and others, it recommended "the federal government establish a royal commission to examine Australia's response to the ... pandemic".

The referral to the Senate committee was the result of two years of frustration by many in the community with the failure of the Albanese government to appoint a royal commission despite Labor's strong intimations to do so when in opposition.

Moreover, the Senate select committee on the pandemic chaired by Labor senator Katy Gallagher, now Finance Minister, and dominated by Labor and Greens senators, recommended on the eve of 2022 election that "a royal commission be established to examine Australia's response to the COVID-19".

Yet the Albanese government has failed to appoint a royal commission. Indeed, in August last year when United Australia Party senator Ralph Babet moved a matter of urgency motion for such a royal commission, many of the same Labor and Green members of that former Senate committee, including Senator Gallagher, that had advocated a royal commission, voted it down.

Instead, it was only a month after that debate and some sixteen months after coming to office, that the Albanese government finally appointed the Commonwealth Government COVID-19 Response Inquiry. It was not a royal commission and was widely criticised at the time as being inadequate in terms of its powers, terms of reference and membership.

The legal and constitutional affairs Senate committee has confirmed those same criticisms. It concluded there was "an overwhelming case" that "the federal government establishes a royal commission to examine the Australian response to the ... pandemic" because the Albanese government's inquiry "is structurally flawed" on several counts.

Foremost of these flaws is that it lacks the statutory investigatory powers of a royal commission to make witnesses attend, procure records and files, and provide legal protection to those giving evidence. It was noted the Albanese government's inquiry was in stark contrast to those statutory inquiries into the pandemic appointed England and Scotland and New Zealand's royal commission.

The Senate committee criticised the government inquiry's terms of reference as it was precluded it from examining "actions taken unilaterally by state and territory governments". Given state and territory major roles in responding to the pandemic and the controversies of their decisions on lockdowns, school closures, and business, the Senate committee concluded this "does not make sense". Hence the committee's "firm view" that any royal commission should be a federal-state one for which there are many precedents. Only such a royal commission" would produce the optimal opportunity to learn from Australia's response to the ... pandemic".

Further, the government's non-statutory inquiry does "not have the independence of a royal commission" especially as it is being assisted by a taskforce from the Department of Prime Minister and Cabinet, hardly a neutral bystander during the pandemic. Some submissions to the Senate committee argued that as several members of the government inquiry had supported certain responses to the pandemic then their impartiality could be questioned.

The Senate committee proposed more extensive terms of reference for a royal commission than the current inquiry. This included reviewing "the preparedness for and response to the COVID-19 pandemic by the Commonwealth, state and territory governments" so it could "make recommendations for a future pandemic".

It also proposed that the "effectiveness and appropriateness" of Australian responses be assessed not just from a limited health perspective, but also in terms of the human rights, social cohesion, public finances and the economy. These issues are largely missing from the current government inquiry's focus.

Although proposing detailed draft terms of reference, the committee believed that as occurred overseas, any such draft should be circulated for public comment before being finalised - a process missing from the government's inquiry.

The Albanese government will not accept the Senate committee's recommendation and work with the states and territories to establish a royal commission. It would be big a backdown, an admittance of error and might expose the five Labor states and territories in office during the pandemic to the scrutiny that has been absent over their possibly questionable actions.