New Zealand: Expanded scope for Covid-19 Royal Commission

The existing Inquiry

The Royal Commission into Covid-19 Lessons Learned was established in December 2022 with epidemiologist Professor Antony Blakely, former cabinet minister Hekia Parata, and former Secretary to the Treasury John Whitehead appointed as Commissioners. The Commission was tasked with examining New Zealand’s response to the pandemic in order to strengthen its preparedness for, and response to future pandemics. Its original focus was on identifying lessons that can be learned from the Covid-19 experience to strengthen New Zealand’s overall pandemic preparedness. It was asked to report its findings by June 2024, the deadline later being extended to September 2024.

The particular scope of the Commission was set out in its terms of reference, which outlined the Inquiry’s primary focus and provided guidance as to how it should operate. Since February 2023, the Commission has been gathering evidence with the Commission’s website noting that it is not, “looking to find fault or assign blame” and is instead, “focused on capturing the lessons learned from the pandemic”.  As a result, the Commission has not held public hearings, but has sought to hold “a wide range of meetings and interviews with individuals, organisations and communities of interest”.

Expanded scope

The scope of the Commission’s terms of reference has been criticised by some since its inception, including as to a number of matters, which were specifically excluded from its scope, including vaccine efficacy and monetary policy. Following the election, the new Government committed to expanding the scope of the inquiry.¹ To that end, there was, earlier this year, public consultation regarding the possible expansion of the Commission’s terms of reference.

Following on from that consultation, the Minister of Internal Affairs has now announced the key respects in which the scope of the Commission is to be expanded. These are:

• • The existing Commissioners will resign in November after delivering a report in respect of their terms of reference, now referred to as the “first phase” of the Commission.
  • The Minister will appoint new Commissioners in August to undertake the second phase of the Commission and will, at the same time, confirm detailed new terms of reference.
  • The second phase will run from November 2024 until February 2026 when the new Commissioners will be required to deliver their final report and recommendations.
  • The second phase of the Commission will, by contrast to the first phase, be conducted in public and “involve hearing evidence in public when and where it is appropriate to do so”.

Ahead of new detailed terms of reference being released in August, the Minister has provided some visibility as to the likely scope of the terms of reference for the second phase:

1. The use of vaccines during the pandemic, specifically, mandates, approval processes and safety including the monitoring and reporting of adverse reactions.
2. The social and economic disruption of New Zealand’s response policies, specifically, the impacts on social division and isolation, health and education, and on inflation, debt and business activity, and the balance of these impacts against Covid-19 minimisation and protection goals.
3. Extended lockdowns in Auckland and Northland, specifically whether similar public health benefits could have been realised from shorter lockdowns.
4. The utilisation of partnerships with business and professional groups.
5. The utilisation of new technology, methods, and effective international practices.

What is a Royal Commission?

The law relating to independent inquiries was reformed and modernised by the Inquiries Act 2013 (Act) which makes provision for three types of inquiry:

• • Royal Commissions of Inquiry (such as the Royal Commission on the Pike River Coal Mine Tragedy and the recently concluded Royal Commission of Inquiry into Abuse in Care) are established by the Governor-General, have greater status, and tend to deal with matters of great national importance.
  • Other public inquiries (such as the 2020 Public Inquiry into the Earthquake Commission), which are established by the Governor-General, and can deal with any matter of public importance.
  • Government inquiries (such as the April 2024 Government Inquiry into the Response to the North Island Severe Weather Events), which are established by Ministers, and tend to deal with more immediate matters. The intention is that these are simpler and quicker to establish.

All inquiries have the same statutory powers, including the ability to:

• • regulate their own procedure, subject to the Act and their terms of reference;
  • obtain information from any person by requiring them to produce documents or provide information;
  • summon any person to attend and give evidence before the inquiry;
  • forbid publication of evidence or submissions, including by holding any part of the inquiry in private;
  • make findings of fault or recommend that further steps be taken to determine liability; and
  • make awards of costs against any person.

Comment

As well as expanding the scope of the terms of reference, the announcement by the Minister demonstrates an intention to move the Commission back towards a more traditional hearing-centric mode of receiving evidence, which may be more akin to a Court process. While the Commission is likely to retain the ability to gather evidence in other ways, it appears that public hearings and the formal presentation of evidence by participants is likely to be a feature. Alongside the holding of hearings, the Commission may use its broad powers (referenced above) to compel people and entities to provide documents and information to it in aide of any intended hearings in order to fulfil its terms of reference.

Kirsty Dobbs and Matthew Gale have significant experience in acting for clients engaging with public commissions of inquiry, including in respect of the recently concluded Royal Commission of Inquiry into Abuse in Care which ran from February 2018 to June 2024.

If you have any questions about the matters raised in this article, please get in touch with the contacts listed or your usual Bell Gully adviser.