Is New Zealand’s royal commission into the pandemic response best practice?

Introduction

New Zealand (NZ) last week announced a Royal Commission into the recent pandemic – its full title – the Royal Commission of Inquiry into Lessons Learned from New Zealand’s Response to COVID-19 That Should be Applied in Preparation for a Future Pandemic (henceforth Royal Commission on COVID-19). It is required to report by June 2024 – some 18 months away, which is also an election year.

Royal commissions in New Zealand, as in other Westminster democracies like Australia, are appointed by the Crown (Governor-General/Governor) on the advice of executive government (usually by the prime minister) which determines their terms of reference, membership, resourcing, and reporting timeframes.

Although in effect appointed by executive government, royal commissions have considerable prestige. They are seen to be expert, independent and arm’s length from government as their members are drawn from outside of government, have public hearings, and release their reports. In addition, in New Zealand, as in Australia, they are established under legislation (Inquiries Act 2013) that gives them coercive powers of investigation - they can probe deeply. Royal commissions, however, are advisory only - they make recommendations, not enforceable decisions unlike courts. It is up to executive government to accept, reject, or ignore their reports.

New Zealand has a long history in appointing royal commissions dating back to the nineteenth century. They are still highly regarded. Indeed, when reviewing legislation governing public inquiries in 2008, the New Zealand Law Commission (NZLC) endorsed the continuation of the royal commission form of inquiry especially for topics characterised by the “gravity or breadth of the circumstances they investigate”. 

Some key NZ royal commissions include those into the: Mount Erebus plane crash (1981); electoral system (1985); genetic modification (2000); Pike River coal mine disaster (2010); Canterbury earthquakes (2011); child abuse (2018); and the Christchurch terrorist attack (2019). Interestingly, following the 1919 Spanish Flu pandemic, New Zealand appointed the Influenza Epidemic Commission while Australia did not, given the difficulties of procuring agreement across federal and state jurisdictions and the Commonwealth government’s limited constitutional health powers.

Reasons for appointment

Why governments appoint royal commissions is one of the perennial questions concerning these bodies. The executive government key role in the appointment of royal commissions means that such decisions are made behind closed doors, making it difficult to know for sure a government’s real motives in establishing these bodies. They can be appointed for legitimate reasons to find the facts, conduct research, allocate responsibility, promote consultation and to provide expert advice. Or they can be deployed for more covert politically expedient reasons like being seen to be “doing something”, blame avoidance and minimisation, agenda management, or to justify a government’s actions. Decisions to appoint all inquiries is affected by the political context of the time – a government’s poll rating, the electoral cycle, and the political sensitivity of an issue.  

Certainly, Prime Minister Ardern, stressed in announcing the Royal Commission on COVID-19, that it was being appointed for the legitimate reasons to review the government’s responses to the pandemic so improvements can be made for the future. As Ardern said, while NZ had “experienced fewer cases, hospitalisations, and deaths than nearly any other country”, the pandemic nevertheless had “a huge impact on New Zealanders” and “so it is critical we compile what worked and what we can learn from it should it ever happen again”. The royal commission’s full title, outlined above, with its stress on “lessons learned” and “preparation for the future” reflects this approach. This is a common rationale by governments appointing royal commissions following calamitous events like bushfires and floods.

Nevertheless, inquiries following crises like the pandemic are deal with criticisms of a government’s responses to such events. The Parliamentary Counsel’s background paper for this royal commission noted that there was “criticism of NZ’s preparedness to deal with COVID-19, of the organisation of the response, and of particular public health measures and their impact on people’s lives. This criticism, combined with the recent falling popularity of the Ardern Government and concerns about NZ’s economy were also possible triggers for this royal commission.

In these circumstances the Ardern Government’s choice of the royal commission instrument is understandable. As Ardern said, the “royal commission … is the highest form of public inquiry” and thus appointing one “is the right thing to do”. It is a clear signal that the Ardern Government was taking this matter seriously, just as when the Morrison Government appointed royal commissions into aged care (2018) and bushfires (2020). This reflects public perceptions about the value and status of royal commissions. It was good politics on Ardern’s part.

Assessing the royal commission