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

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.