Labor ‘quarantines’ states from Covid accountability

After promising an inquiry into Australia's pandemic response – widely expected to be a royal commission – the Albanese government has finally appointed what can only be described as a second-best inquiry.

It fails on every count of what constitutes a best-practice open, independent public inquiry into a calamitous national event such as the Covid-19 pandemic.

The government has failed in not establishing a royal commission. Instead, we have a non-statutory inquiry, lacking a royal commission's coercive powers of investigation to call and cross-examine witnesses, procure files, to take evidence under oath and to protect witnesses from defamation or reprisal.

Labor made much about having a royal commission when the Senate Covid-19 committee – chaired by Senator Katy Gallagher – recommended one on the eve of the federal election. It has not delivered.

It stands in contrast to New Zealand's royal commission and the UK pandemic inquiry, appointed under its Inquiries Act 2005.

It fails because it will be a commonwealth-only inquiry rather than a joint federal-state royal commission. Consequently, it will be unable to review how the states handled or mishandled the pandemic.

There are many precedents for joint federal-state royal commissions, as the Gillard and Morrison governments demonstrated. The failure to pursue such an arrangement here should force us to ask why the five Labor states and territories – which were in office during the pandemic – are now being effectively "quarantined" from an open review?

It is also worth noting the lack of public consultation about the terms of reference. Such prior consultation is now common practice. It ensures all aspects of an issue will be covered.

Consultation occurred under the Gillard government for its child sexual abuse commission and the Morrison government regarding its aged-care commission. In the UK, there was extensive consultation for its pandemic inquiry, and Sweden had bipartisan support.

The terms of reference of this Covid inquiry are narrow and limited. Its "whole of government" approach is limited to "review the commo.nwealth's response".

Its focus is primarily on health, business and community support measures. Tellingly, "outside the scope of the inquiry" are "actions taken unilaterally by the state and territory governments".

Governance is considered only in terms of the commonwealth's interactions with the states in limited formal roles. Compared to overseas reviews there is no assessment into the range and quality of expert advice, issues of preparedness, the veracity of some health advice, civil liberties, or the veracity and the impact of school closures.

There is also the issue of the inquiry's membership, which must be perceived in the public mind as independent and expert. In this respect, Sweden's eight-person commission set the standard.

Chaired by a Justice of the Supreme Court, its members were drawn from reputable institutions covering economics, local government, infectious diseases, aged care, business, public policy and ethics. Similarly, the UK inquiry is chaired by Baroness Hallett, a former senior judge.

By contrast, the three-person Albanese inquiry has only one member with direct applicable health expertise. Another has health administration experience and certain related qualifications, while the other is an economist from a left-of-centre think tank.

The three members might be perceived, given their current and previous work, as being too close to the government.

While the inquiry will "consult with relevant experts", we don't yet know who it will approach. An expert reference panel to assist and oversee the inquiry, especially given the complexity of the issues involved in the pandemic, would have been better. This is what has occurred with other reviews.

Although the inquiry will hold public consultations across Australia, it is unclear whether these will be open public hearings like royal commissions, whereas in the Robodebt royal commission, we all learnt so much.

This is not a review of how Australia as a nation responded to the pandemic. We weren't in it together then, and we certainly won't be in it together now with this flawed inquiry.

This is the inquiry the Albanese government had to have – not the inquiry Australia really needs.