Newly appointed Royal Commission of Inquiry chair, Professor Tony Blakely, says he is happy with the terms of reference for his inquiry. But should we be? And is Blakely even the right person to chair the Commission?

Before answering those questions, it is unequivocally good news that New Zealand is to hold an inquiry into the country’s pandemic preparedness and response. The 2020 election served as a form of scrutiny for the first phase of the pandemic.

But, since then, the country’s Covid course has not been plain sailing. The slow vaccine roll-out. Last year’s long lockdown in Auckland – bringing the cumulative total time the country’s largest city was shut down to over six months. Harsh border restrictions rationing MIQ places for Kiwis wanting to return from overseas. The Ministry of Health’s bewildering decisions on issues like Rapid Antigen testing and PCR saliva testing. And the unravelling of the team of five million - not to mention the “other million” locked out overseas. As I wrote in this column in March, nothing less than a Royal Commission of Inquiry could suffice to evaluate this catalogue of concerns. Without a doubt, there is a lot to learn.

But have we got the right Royal Commission?

Let’s deal with the question of Blakely’s appointment first. The answer is simple. Blakely is the wrong person to chair the Commission. Royal Commission chairs should be independent of the matters covered by their inquiries. Blakely is not. He has been a regular commentator on Covid policy in New Zealand and has sought to influence the country’s pandemic response. On occasion, Blakely has even written in conjunction with Otago University’s vocal pandemic critic, Professor Michael Baker.

Blakely is also very closely associated with the State of Victoria’s pandemic response in Australia. Infamously, Victoria adopted one of the world’s strictest lockdowns.

Consequently, if we were looking for someone to evaluate the overall impact on well-being of New Zealand’s approach with, say, Sweden’s, then Blakely is not the Commissioner we need. He already has a clearly articulated view. That means the Inquiry will not be conducted with the dispassionate independence that typically characterises Royal Commissions – which in part explains why Royal Commissions are usually chaired by senior members of the judiciary.

There are also concerning questions over the Commission’s terms of reference. They are surprisingly narrow. And they are skewed towards assessing whether the elimination strategy worked, and not whether it was the optimal strategy. It may have been. But the premise on which the terms of reference are based is that the strategy was right. Their whole focus is on how we could have executed the strategy better. That is not the type of dispassionate inquiry the country needs.

The terms of reference state, “The inquiry may assess whether New Zealand’s initial elimination strategy and later minimisation and protection strategy in response to the COVID-19 pandemic… were effective in limiting the spread of infection…” Yet, limiting the spread of infection is only half the equation. The other half of the equation is the question, “But at what cost?”

At the heart of any public health response is the weighing up of costs and benefits. For example, a benefit of closing schools may be limiting the spread of infection. But that needs to be weighed against the cost of the schooling and socialisation foregone.

Yet nowhere in the terms of reference is the Commission expressly asked whether we got the balance right. Instead, the focus is whether our elimination - and later, minimisation and protection - strategies were effective in limiting the spread of the virus. Yet, we already know as a matter of fact that the strategies were effective.

Finally, it is at best puzzling, and at worst concerning, that the terms of reference appear to expressly preclude inquiry into mistakes made in particular situations. That is because the terms of reference explicitly state that “how and when strategies or other measures were implemented or applied in particular situations” are out of scope.

On a literal interpretation, that means there will be no inquiry into particular delays in testing border staff (as occurred in July 2020), or the particular approach to the procurement of the Pfizer vaccine in the second half of 2021, or indeed to particular failings in contact tracing.

Professor Blakely may prefer an inquiry conducted along these lines. But, unless the terms of reference are broadened, the Royal Commission will not deliver all the lessons the country should learn from the Covid-19 ordeal. And it will not provide the form of reconciliation needed to heal an increasingly divided nation.