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

Identifying a government’s motives for appointing a public inquiry can be partly gauged by: the status and expertise of its membership; the nature and breadth of terms of reference; reporting timeframes; and ultimately the quality of thefinal report and whether its recommendations are implemented.

Membership

In terms of membership, this royal commission has several features distinguishing it from earlier NZ inquiries and elsewhere. For instance, it is chaired by a health expert, an epidemiologist, Professor Antony Blakely, based at the University of Melbourne, rather than a sitting or former judge. In addition to his health expertise, Blakely, is a New Zealander, understands local conditions and during the pandemic had adopted a cautious and moderate approach in his public commentary on Australian government responses to the pandemic. Other members include a highly regarded economist and former head of NZ Treasury – John Whitehead – apt given concerns about the economic impacts of the pandemic. The third member, a former National Party (the current opposition) cabinet minister (education), the Hon Hekia Parata, as well as her own expertise and experience, also allays concerns that the royal commission is dominated by the incumbent Labour government.  Overall, it would be difficult to condemn the royal commission’s membership – it is a mixture of relevant expertise, real policy experience and independence from the current government.

Terms of reference  

Royal commissions are given terms of reference which they are obliged to follow and appointed under legislation which requires certain processes to be followed. Most inquiry legislation, including NZ’s, requires inquiries to follow the principles of natural justice.  

Terms of reference are usually limited and focussed. In this case, they are extensive covering quarantine arrangements, regulatory approval processes, modelling and surveillance systems, public communications, and NZ’s economic responses to future pandemics, decision making structures, consideration of Māori needs, and whether the strategies pursued “were effective in limiting the spread of infection and limiting the impact of the virus”.

At the same time this royal commission’s terms of reference are distinguished from other inquiries, by the long list of areas listed as being “outside the scope of the inquiry”. These include: clinical decisions; how and when strategies and other measures were implemented; the epidemiology of the virus; recent health reforms; decisions by courts and other leading authorities; the Reserve Bank’s monetary policies; court and parliamentary procedures and the conduct of the general election (October 2020). Unsurprisingly, the Green Party has described the terms of reference as being “deliberately narrow in scope and excludes the impact of the Government’s economic response had on inequality”. Is this royal commission going to be a “whitewash” whereby it fails to explore those issues that critics had of the Ardern Government’s concerning its perceived over-zealous responses to the pandemic?

Another unusual practice for this royal commission is the prescriptive detail outlined in the Parliamentary Counsel’s paper of how this inquiry should be conducted. Usually, it is left to the commissioners to decide, within the parameters of the legislation, to decide their procedures. By contrast, with this royal commission, there are several detailed requirements concerning it processes such as: to avoid acting in a legalistic and adversarial way; use information publicly available; and “not to duplicate or repeat work already undertaken”. While some of these have merit, like seeking to prevent the royal commission becoming a quasi-legal investigation, unlikely as none of the commissioners have a legal background, they could be seen, in conjunction with the tight terms of reference, as constraining the inquiry in the conduct of its investigations. 

Other countries’ pandemic inquiries

When discussing New Zealand’s royal commission into COVID-19 it is worth briefly examining other countries’ responses.

In the United Kingdom, the Johnson Conservative Government, announced a public inquiry 2021, but it only began in June this year following extensive three-month public consultations over its terms of reference. Appointed under the Inquiries Act 2005, it has clear statutory powers of investigation, wide terms of reference, and is chaired by a former senior judge, currently a member of the House of Lords, and assisted by a large number King’s Counsels and an expert advisory panel.

Sweden was more proactive. A commission of inquiry with bipartisan support was established at the beginning of the pandemic in 2020 to report on the nation’s response as the pandemic progressed. Presided over by a supreme court judge, it is supported by seven commissioners with experts across health, public policy and even ethics, it produced several interim reports and then a two-volume final report. Although largely endorsing Sweden’s distinctly different response to the pandemic compared to many other countries, the report nevertheless highlighted some serious flaws.

Although Australia, like New Zealand, had one of the lowest death rates in the world from the pandemic, and its economy has revived even more quickly, there have been many calls for a royal commission too. Concerns include:Commonwealth Government’s vaccine rollout; the use of evidence and expert advice; contradictory State responses; media reporting of causes of death; the efficacy, constitutionality and impacts of State border closures; the value and costs of extended lockdowns; civil liberties; police force; effects of school closures; National Cabinet’s effectiveness.

However, the issue for Australia with its federal system of government and a formal written constitution (unlike New Zealand), is who could initiate a similar a royal commission?

Any Australian royal commission into the pandemic would have to be national in focus and thus would need to be initiated by the Commonwealth but would have to be supported by the States given their key roles during the pandemic. In other words, it would necessitate a joint federal-state royal commission – a not unusual occurrence. However, the new Albanese Labor Government, although eager to appoint a royal commission into its predecessor’s Robodebt program and an inquiry into the previous prime minister’s exercise of powers, has averred forming an independent review into the nation’s responses to the pandemic. The reasons are clear – such an inquiry would necessarily have to assess not just the Commonwealth’s action, but those of Labor States and Territories that were sometimes controversial, and questionable.  

All we have had in Australia, other than a partisan-based federal parliamentary committee review, is the Shergold Inquiry which reported in November. It was a private review sponsored by major philanthropic bodies, and although not uncritical of some of Commonwealth and State governments, was not an open public inquiry, did not have access to all the information, and because it lacked any formal status was consequently dismissed too easily by some governments and has not been the basis of ongoing discussion within government.

Conclusions

While NZ’s Royal Commission on COVID-19 has several limitations relating to its terms of reference and some might argue its procedures, at least the Ardern Government has appointed a royal commission. It has official status, has statutory backed investigative powers, a largely expert membership, and a long reporting timeframe allowing it to probe deeply. And like many previous royal commissions, it may, in the course of its investigations, unveil important issues not envisaged by the Ardern Government.