Royal Commission Covid inquiry: David Seymour, Winston Peters right about scrapping it – Deborah Chambers KC

NZ Herald | 21 Dec 2023


Winston Peters campaigned on a policy of scrapping the current Royal Commission inquiry into Covid. His main complaint is the terms of reference are far too narrow. Peters wants a new, independent and broader inquiry.

David Seymour supported the Royal Commission when it was announced but expressed concerns about the failure to include key issues in its terms of reference.

The National Party also objected to the fact other political parties were not consulted on membership of the Royal Commission or the terms of reference, which were described as “limited”.

The coalition agreement recently concluded by our new Government includes a commitment to a “… a full-scale, wide-ranging, independent inquiry”. Prime Minister Luxon has said the aim was to “broaden the terms of the Covid inquiry so it considers more things, and broaden the terms of reference”.

The issue now is whether the existing Royal Commission, announced in December 2022 by then Prime Minister Jacinda Ardern, can be salvaged or whether we are better to start with a clean slate. I suggest the latter, for two reasons.

First, the methodology and related terms of reference are not fit for purpose. Second, the leadership of the Royal Commission is not conducive to a broad, independent inquiry.

So, what is wrong with the current Royal Commission?

The Commission’s terms of reference and non-adversarial approach are terrible news for anyone who wants to learn the truth behind the decisions made at the height of the Covid pandemic.

The terms of reference are focused on lessons that can be learned for any future pandemic and the recommendations on public health strategies that should apply for a future pandemic.

The terms of reference appear to presuppose that the public health response itself was justified and the only lessons we could take forward into the future might be about the effective implementation of that public health response.

In other words, there is no evaluation of Government decision-making. The microscope will be focused on how future governments can legislate and regulate more effectively on their chosen path.

But the implementation of the Government’s public health strategy is not the key issue for most New Zealanders.

It is now clear that many New Zealanders want answers about the public health decisions themselves and the umbrella issue: whether the indisputably large inroads into our liberties were justifiable.

Decisions like extensive and preventative lockdowns at the later stages of the pandemic, vaccine mandates or closing our borders to Kiwis stuck overseas. These decisions have had painful consequences: sky-rocketing school absences, particularly among our poor, sky-high anxiety, missed cancers and a catastrophic effect on mental health, our economy and crime.

How were these decisions actually made by our Government? What cost-benefit analysis was done to reflect the social and economic burdens that necessarily accompanied life-saving measures? What was the true cost of these measures as it played out and how many lives were indeed saved? Were less invasive measures that didn’t breach our Bill of Rights evaluated? Did the Government deliberately exacerbate a climate of fear to promote compliance with various regulations and to what extent did the media support such an agenda? Was the Government’s additional focus on protecting the health of the Māori and Pacific Islander communities proportionate to outcomes for those communities? What expert advice was the Government receiving – was a broad range of views sought (within reason)? And how accurate was the Government’s statistical information that it based these decisions on?

New Zealand’s official Covid-19 death toll is currently 3623 (the virus either being an underlying or contributory cause of death). Most people would accept that on this measure New Zealand did well. The unaddressed issues for many New Zealanders are the proportionality and whether the extreme measures of social distancing, MIQ and lockdowns were actually necessary as the pandemic progressed and we gained information.

The key issue is about whether the indisputably large inroads into our liberties were reasonable in the circumstances. It should go without saying but the lessons that any commission or inquiry can learn will be limited by the nature of the questions asked.

The current Commission is asking entirely the wrong questions and with the wrong frame of mind. Its findings will have no prospects of addressing the real issues that New Zealanders have with the hardships caused by our then Government’s response to Covid.

The second fundamental flaw with the Royal Commission is the leadership of the Commission.

The Government appointed Australia-based epidemiologist Professor Tony Blakely to chair the Royal Commission. It also appointed a former Minister of Education, Hekia Parata. She has resigned. The third member is John Whitehead, an ex-Treasury secretary appointed for his expertise on the economic response.

Putting an epidemiologist in charge of this inquiry is like putting a rabbit in charge of the lettuce garden. There is little doubt that epidemiologists such as Dr Michael Baker are convinced the Government response was the correct one. Our Government was so reliant on the epidemiologists that for a year or so they effectively became our unelected government. The advising epidemiologists have intellectual skin in the game in terms of justifying the decisions that were made.

All indications are that the operation of the Commission so far has indeed been narrow. The inquiry can be easily accused of being a self-serving political backside-covering exercise because who did the Labour Government put in charge of this inquiry? Another epidemiologist.

Up close, the existing Commission looks like a giant, expensive, rubber stamp to simply approve the last Government’s policy in regard to Covid-19. As constructed, this inquiry will predictably be an expensive exercise in missing the point. The response to Covid-19 was not just a scientific question. It was also a social and economic question and that evaluation, and the independent leadership to undertake that evaluation is glaringly absent.

Whatever mistakes were made at the time, it is imperative that the coalition’s inquiry is an opportunity to learn from them. The Government needs to scrap the current Commission completely and start again. Anything else will be just “lipstick on a pig”.

  • Deborah Chambers is a King’s Counsel and an expert in trust litigation and relationship property law.

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