When the current crisis is over, the actions of the Government and its officials will need to be examined so the country is better prepared for the next health emergency. Linda Clark suggests a Royal Commission or Public Inquiry is called for.

It is a truism that none of us ever expected to be living under lockdown. Just as true is the fact that while New Zealand had a pandemic plan, few of us had given it much thought and no one ever really expected it would be needed or certainly not in the way events have unfolded.

The fact of the national emergency has seen Parliament suspended and emergency powers in place. There has never been a single definition of what constitutes an emergency or when emergency powers are justified. But in this case, overnight, personal freedoms were curtailed, businesses were forced to stop trading, schools were closed and workers were prevented from earning a living.

The source of this national discombobulation is the section 70(1)(m) Health Act Order issued under section 5 of the Epidemic Preparedness Act 2006 on 24 March 2020. The language used in the Order (made under Dr Ashley Bloomfield’s name) has the urgency and tone of an old town crier.

I require to be closed, until further notice, all premises within all districts of New Zealand.

I forbid people to congregate in outdoor places of amusement or recreation of any kind or description (whether public or private) in all districts of New Zealand until further notice.

That the State has these powers to wield is a product of an earlier health scare – avian or bird flu which spread quickly, mainly across Asia and Europe from 2004 – 2006. More than half of those who became infected with bird flu died (a much higher fatality rate than Covid-19) and the most susceptible were aged between 10 and 39. New Zealand made it a notifiable disease in 2004 and in 2006, fearing that it would take only one passenger on one flight to bring the much feared influenza to this country, Parliament unanimously agreed to update the country’s epidemic preparedness.

At the time MPs were conscious that closing public spaces and giving police the powers to enforce the orders of the Director-General of Health were significant restrictions on every New Zealander’s personal liberties. The checks and balances built into the 2006 Act include limiting the duration of any Epidemic Notice and requiring Parliament to meet as soon as practicable following the issuing of the Notice (this happened on March 25). Both checks are effective to a point. But now the theoretical has become a reality such levers look very light indeed.

It has been clear throughout that responding to the unprecedented has required some fast footwork. The initial orders did require further clarification. The Government and its officials took a series of side-steps and pivots to provide further and better information. In some cases these adaptations and additions were the result of political or public pressure. Other times they were made after new information become available. The same applies to the Ministry of Health’s oversight of testing and pandemic preparedness.

In usual circumstances any Government making policy by degrees in this way would come under intense scrutiny from all sides. That’s the purpose of the thrice a week Question Time – to provide other MPs with an opportunity to test Ministers, and the Prime Minister especially. But with no Question Time and business as usual suspended, the novel Epidemic Response Committee, chaired by Opposition Leader Simon Bridges and dominated by Opposition MPs, has become the principal check. While this committee has performed a useful but limited role, for good reason (and for a short period only), politics is not being played by the usual rules.

When this pandemic is finally under some sort of control there will be time for – and there will need to be – some kind of accountability mechanism to allow hard questions to be asked so that lessons can be learnt in readiness for the next time a health emergency strikes.

The most appropriate forum to test this would be a Royal Commission. They are usually reserved for the most serious matters of public importance. Inarguably, the effect of the pandemic and the response to it on our lives and our livelihoods are matters of the highest public importance. Issues as diverse as the Pike River mine disaster, the March 15 mosque attacks and the historic abuse of children in state care have been (or are) the subject of Royal Commissions. In each case, these inquiries have statutory independence, the power to take evidence on oath or affirmation and the authority to summon witnesses and require any person to provide information. All good things.

On the downside, though, Royal Commissions have their own problems, depending on the choice of commissioners, speed (or lack of it) and the extent to which the process becomes judicialised. Mindful of all these things, in November 2018, when this Government launched an inquiry into the Earthquake Commission it opted instead for a Public Inquiry, led by Dame Silvia Cartwright. That inquiry had the same powers as a Royal Commission but fewer complications and could be a model which finds favour. In either case, any inquiry will need to have a crisp terms of reference and a tight timeframe.

The Government has already indicated that some things can’t wait. The decision by the Director-General of Health to launch a review of a sub-set of aged care services shows a degree of urgency is required to ensure the most vulnerable are being properly cared for. The fact that a review has been launched so swiftly indicates something has gone wrong and, if so, the whole sector needs to understand what and how, as soon as practicable to avoid further tragedies.

But that review is limited and the issues raised by this emergency are much wider than one part of the health system. Some starting points might be:

– The effectiveness of the overarching pandemic plan, and its legal foundation:

– Whether NZ’s pandemic plan proved to be fit for purpose?

– Whether the relevant statutes allowed the Government and/or the Director-General to do all that needed to be done?

– Whether there were appropriate checks and balances to ensure that New Zealanders’ freedoms were only restricted as much as was reasonably necessary?

– Whether all arms of Government fully understood their role and authority?

– Whether there were regional differences in readiness and response?

– The effectiveness of the health system in a national crisis:

– Did having 21 district health boards help or hinder?

– What amount of PPE equipment should New Zealand have had in readiness? Who should have held it? Were there supply gaps and, if so, why?

– Were the testing protocols appropriate?

– Should GPs and rest homes, who after all are private businesses, have taken more proactive steps to be prepared?

– How prepared were New Zealand’s tracing services (nationally and locally)?

– The effectiveness of border control

– Data collection, management and sharing in a national crisis, and the privacy implications of change

– The effectiveness of other (non-health) government agencies in a national crisis

– What lessons can we learn, for the inevitable next time.

In the short to medium term, New Zealand has been shocked into a new and different trajectory. So too has the rest of the world. How this impacts on the economic well-being of our major trading partners is a real cause of concern. In that context how we all adapt to this ‘next normal’ will be crucial, and how well we learn from our present response matters a great deal.

Linda Clark is a Wellington lawyer and former political editor for TVNZ

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