Chapter 3Terms of reference and recommendations
3.1As discussed in Chapter 2, the committee received evidence from a wide range of stakeholders affected by the Australian response to the COVID-19 pandemic. Many of those stakeholders proposed numerous and quite specific terms of reference for a COVID-19 royal commission.
3.2Evidence to the committee demonstrated popular support for a COVID-19 royal commission. For example, the People’s Terms of Reference provided the committee with a large volume of suggested terms of reference and proposed witnesses for a royal commission. Its proposed terms of reference were supported by ’46,609 co‑signatories’. A petition that called for the establishment of a COVID-19 royal commission, circulated by the Winston Smith Initiative, similarly ‘garnered more than 65,000 signatures at the time of writing’. These two submissions alone demonstrate there is considerable appetite within the Australian community for a COVID-19 Royal Commission.
3.3This chapter argues that a COVID-19 Royal Commission is required to enable Australia to prepare for the next pandemic and to assist in restoring civic trust in the political process. It explores some of the proposed terms of reference proposed by inquiry participants, develops broad terms of reference for a COVID-19 royal commission, and sets out the committee’s views and recommendations.
The need for a royal commission: Restoring trust
3.4Trust was an important issue raised during the course of the inquiry. For example, Civil Liberties Australia (CLA) stated ‘trust has been destroyed. Numerous surveys have shown that trust is disintegrating’. CLA referred to the 2023Edelman Trust Barometer which indicated that over ‘the last two years since the major COVID crisis has passed, 61 per cent…of Australians now say the lack of civility and mutual respect is the worst they’ve ever seen’. The growing level of distrust is a concern as it ‘is essential in a democracy. It is the basis on which democracy functions’.
3.5COVERSE argued that the inquiries into the Australian response to the COVID-19 pandemic have thus far failed to restore trust in government. Those inquiries have not been perceived to have the appropriate level of political neutrality to restore public trust as:
…standard Parliamentary processes and an almost totally divisive partisan approach have not enabled the required level of detail to address evidence and achieve justice for those Australians impacted, nor to resurrect civic trust in Australia’s public health policies and measures.
3.6The Redfern Legal Centre indicated that many of its clients have a growing distrust of government and government agencies, including police forces, as a direct result of their pandemic experience. In its view, trust can be restored:
…through transparency and accountability, and that is what a royal commission could obviously go into. It doesn’t mean that the trust is destroyed, but if you don’t bring these stories into the open and give them some light the distrust will fester.
3.7Other submitters argued that only a royal commission would have the power to properly investigate the successes and failures of the Australian response to the COVID-19 pandemic. The Ai Group further suggested that only a royal commission would be able to provide ‘proper insight into the complexities and inconsistencies of those responses that would provide us with a blueprint for how to deal with future pandemics’.
3.8The AHRC identified two potential benefits to establishing a COVID-19 royal commission. Firstly, a royal commission would offer an opportunity to assess ‘both the good and the bad in terms of what happened but also allow Australians to see that measures are being taken to improve our responses in the future’. Secondly, it would provide ‘a real opportunity for Australians to get a better understanding of how their neighbours and how people right around the country were impacted by the response measures’. These outcomes would assist in healing the divisions that emerged in the Australian community as a result of the pandemic response.
3.9In assessing the COVID-19 pandemic response, the AHRC emphasised the importance of recognising the context in which decisions were made:
…we need to recognise decision-making in emergencies is different. It is important that any review or any royal commission doesn’t look back with the benefit of hindsight and forget the context in which those decisions were made. Emergency decision-making requires quick decision-making often with incomplete information.
3.10However, the AHRC highlighted that decisions made during emergencies should still be properly scrutinised:
While the suspension of reflection and review mechanisms may be necessary in a time of emergency, it is important to ensure that emergency decision-making itself does not permanently undermine the rule of law and core democratic structures.
International human rights law provides the core criteria for assessing restrictions on rights – all of which should guide the accountability of public health measures in the name of the pandemic. We need to embed a human rights scrutiny process better into all emergency responses, to ensure that any intrusion on our rights is always fully justified, and the debate is had at the time the restrictions are considered – not afterwards.
3.11In the view of the AHRC, the proper scrutiny of the human rights implications of emergency responses should occur ‘at the time the restrictions are considered– not afterwards’. The scrutiny of decisions made during emergencies:
…would aid in maintaining public trust and ensuring compliance with restrictions. It would also provide a safeguard that when we plan for recovery from this crisis, no one gets left behind. Embedding human rights thinking more broadly in decision-making, and the accountability measures that express it – such as statements of compatibility and openness to providing the evidence on which decisions are based – will assist in ensuring the maintenance of trust in our governments and our parliaments, and those who are delegated to act on our behalf, especially in times of emergency, a trust that has been the foundation of our democratic structure for hundreds of years.
3.12In the absence of that scrutiny, the AHRC considered that the ‘question of whether Australians have been exposed to potentially unnecessary or disproportionate restrictions of their human rights…deserves to be given comprehensive consideration’. That consideration is required ‘to ensure that appropriate lessons are learned, and that future emergency responses embed a strong and more effective human rights scrutiny process’.
3.13The AHRC referred to the ‘range of inquiries…that have looked at different aspects of the pandemic response’. In its view ‘a royal commission is the best option to undertake a comprehensive examination of the overall pandemic response in Australia’.
Design of the COVID-19 royal commission terms of reference
3.14Dr Scott Prasser argued that crafting of the terms of reference for a royal commission is one of the most important factors in their establishment:
Perhaps, the most important task for any government is deciding on a royal commission’s terms of reference. That determines what a commission will do and sets the parameters for its investigations. If a government tries to limit an inquiry’s terms of reference too much it will be seen as a ‘whitewash’ and the inquiry will be of limited value both in policy and political terms. If the terms of reference are too wide or loose the inquiry may not just go into unexpected areas but become distracted into minor side issues.
Public consultation
3.15There was strong support for a public consultation period on the terms of reference to give the Australian people an opportunity to assist in their design. Some recent royal commissions have circulated proposed terms of reference for public consultation ahead of the commission being formally established. That consultation period helps ‘ensure key issues are not missed, the inquiry gains media attention, and there is greater public ownership and thus trust, in the appointed public inquiry’.
3.16A petition circulated by the Winston Smith Initiative called for a COVID-19 Royal Commission to ‘be preceded by a period of public consultation that enables interested parties to have their say on the terms of reference’.
3.17The Consumers Health Forum of Australia (CHF) also advocated for a public consultation process, to inform the scope of the royal commission.
3.18Dr Prasser observed that public consultation on the terms of reference for royal commissions is ‘a recent development’. In his view, inviting public consultation is appropriate for a COVID-19 royal commission as it ‘means you catch everything and people can’t complain afterwards that you missed a particular issue. It’s really worth having’.
Opportunity for people to tell their stories
3.19It was argued that not only should the commissioners have a broad range of experiences, but the commission itself should hear from a diversity of people. The Australian Medical Network (AMN) suggested a royal commission should receive evidence:
…from organisations such as AMN, personal stories from patients and health professionals, as well as insights from charities, small and medium businesses, and other reputable organisations. Embracing this inclusive methodology is not only critical but also pivotal in guaranteeing a more comprehensive, unbiased, and independent perspective, allowing all affected stakeholders to be fully heard.
3.20The sharing of personal accounts and experiences during the COVID‑19 pandemic was highlighted as a particularly important component of a proposed royal commission. For example, Professor Katy Barnett stated:
I think it is actually very important that individuals get a chance to tell their stories, and just someone like me who is a law professor but that other people from vulnerable sections of society are assisted to tell their lived experience.
3.21The Redfern Legal Centre agreed that it is ‘critical’ that people have the opportunity to share their lived experience:
People with mental illness, people with intellectual disabilities, people living in housing estates—there was a range of people impacted, and still financially impacted, by policing and COVID fines, and it’s so important to hear those stories on the ground.
3.22The CHF also highlighted the importance of hearing stories from ordinary Australians, as a way of increasing trust in the process:
Hear from the people who experienced the lockdowns, who are experiencing long COVID, whose lives have been severely impacted as a consequence of the pandemic. We think that the community will be very trusting of any inquiry that is willing to hear from Australians about what COVID has meant to them and to their community.
3.23In the view of the AHRC, the ability to share the lived experience of the COVID‑19 pandemic is one of the key reasons for establishing a royal commission:
…it’s important in and of itself to give individuals an opportunity to tell their stories about how such a significant event affected them over a number of years and also, again, so that we can learn the lessons we need to learn to ensure we’re better prepared for next time…it’s incredibly important that, despite the fact we all want to put it behind us and be able to move forward, we can’t do that until we’ve reflected and fully understood the impacts the pandemic and pandemic response measures had and learn those lessons to ensure that it can never happen again.
Commissioners
3.24Several witnesses suggested that a COVID-19 royal commission should have three to five commissioners.
3.25Dr Prasser supported the establishment of a COVID-19 royal commission that has ‘three to five members’. If there are too many members, the commission ‘will sink in its own complexity’. He suggested that a number ‘of different professions and disciplines [should be] involved’ with such a commission. To better ensure the commissioners are adequately supported ‘a reference group of federal, state and other professional bodies’ could be appointed.
3.26The Australian Institute for Progress broadly agreed with Dr Prasser and suggested that representatives of particular professions be appointed. It suggested ‘the number of lawyers should be limited to one’ and that the other commissioners include a health economist and a medical professional.
3.27The IPA indicated that, during the pandemic, many of the decisions were driven solely by a focus on public health and little consideration was given to other views. Consideration of ‘other views such as the social, humanitarian and economic consequences of those polices…would be absolutely critical to having a proper and fulsome inquiry’.
3.28On a similar theme, the Winston Smith Initiative highlighted the importance of the commissioners being seen as completely independent of the decisions and decision-makers involved in the pandemic response:
The Australian public will only accept the recommendations of a COVID-19 Royal Commission if it’s conducted in a way that is truly fair and transparent. This perception of fairness would be tarnished from the outset if the commissioners were found to have been in any way involved in the development or promotion of Australia’s pandemic response, or otherwise linked to the individuals and organisations being investigated.
3.29Dr Prasser similarly raised the importance of appointing independent and neutral commissioners. He indicated one of the perceived weaknesses of the Commonwealth Government COVID-19 Response Inquiry is ‘that its membership is too much of an in-house group’. The IPA noted ‘two of the three inquiry panellists appointed were well noted in the public sphere for being enthusiastic advocates of lockdown policies in Victoria’. The Australian Institute for Progress suggested it might be appropriate to appoint commissioners from overseas to better ensure their impartiality.
Proposed terms of reference for a COVID-19 royal commission
3.30The following sections discuss in greater detail possible matters that a COVID‑19 royal commission could consider.
Matters related to the SARS-CoV-2 virus and COVID-19
3.31Several inquiry participants called for a royal commission to investigate the origins of the SARS-CoV-2 virus.
3.32The CHF argued a COVID-19 ‘royal commission must investigate and provide recommendations on long COVID’.
Pandemic planning
3.33The Australian Institute for Progress suggested that Australia did not adhere to its pre-existing pandemic plan and that a royal commission should examine:
…the adequacy of pre-existing pandemic plans and their relationship to policy that was actually implemented during the pandemic, including any data or information which might exist to support or otherwise those policies.
3.34The People’s Terms of Reference similarly suggested that a royal commission should review and analyse ‘the planning undertaken, the scientific studies relied upon, and the standing recommendations of Australian governments prior to 2020, for the management of pandemics’. It further submitted that such a review and analysis should include a review of ‘the recommendations contained in the Australian Health Management Plan for Pandemic Influenza…and the adequacy of those recommendations for dealing with SARS‑CoV-2’.
3.35The ANMF suggested that a royal commission should examine the appropriateness of existing pandemic response plans. It called for an updated pandemic plan, as the existing one is ‘insufficient’ and did not provide adequate measures to deal with the COVID-19 pandemic. In its view, ‘we have learnt so much over the last four years, and we know how much more robust our systems need to be now’.
3.36The AHRC suggested a royal commission could review the existing pandemic plans and come to an understanding as to why they were not followed in their entirety.
Conduct of Commonwealth, state and territory governments and National Cabinet
3.37Several inquiry participants called for a royal commission to examine the decision-making processes of Australian governments, National Cabinet, and government agencies in responding to the COVID-19 pandemic.
3.38It was noted that the Commonwealth Government COVID-19 Response Inquiry specifically excludes examination of the decisions and actions taken by state and territory governments, and that this is a failure of that inquiry.
3.39The Winston Smith Initiative argued that a royal commission is necessary as ‘the sheer scale of the upheaval caused by the COVID-19 pandemic…[means] that genuine accountability can only be delivered by a truly uninhibited Royal Commission’. It opined:
Our rights to medical privacy and informed consent were overridden by hastily imposed vaccine mandates, and our freedoms of speech, movement and association were quashed by harsh and enduring lockdowns. Never in the history of this country have so many people been subjected to such an extreme level of government intrusion into their lives.
3.40It concluded that:
In the interest of absolute transparency, the inquiry must have unfiltered access to all documents relevant to the design and implementation of our pandemic response measures. Each of these measures must be scrutinised to ensure that they were formulated based on the best available evidence and with appropriate consideration given to the human rights of everyone who stood to be affected. This level of scrutiny will naturally entail the interrogation of key decision-makers.
…
In summary, the entire policymaking process must be laid bare from conception to execution, so that the Australian public can develop a complete understanding of who designed our pandemic response measures, what the measures were intended to achieve, and whether they were ultimately successful. An investigation on this scale can be accomplished by nothing less than a fully empowered Royal Commission.
3.41As the AHRC pointed out, the response to COVID-19 involved ‘complex interactions between Commonwealth, State and Territory governments, all of which had overlapping responsibilities.’ It suggested that ‘[t]he role played by National Cabinet also needs to be part of any review. Examining the actions of any one level of government in isolation can only ever reveal part of this picture’.
3.42In the view of the AHRC, the limited transparency around the emergency decision-making processes of all levels of government poses a challenge to Australian democracy:
The checks and balances that ordinarily exist are integral to our democracy. Australians have been, and continue to be, exposed to potentially unnecessary restrictions of their rights and freedoms because of the lack of transparency and accountability that surround emergency measures.
3.43The AHRC argued it is essential:
…that extraordinary powers exercised in times of emergency are still subject to an appropriate degree of scrutiny and accountability…for a variety of reasons, including to aid in encouraging compliance with restrictions, to prevent overreach and misuse of emergency powers, to ensure that the limits placed on our human rights are necessary and proportionate, to maintain the longer-term health of our democratic foundations, and to maintain broader public trust in our governments and institutions.
3.44The AHRC indicated there are three elements of the Australian COVID-19 pandemic response that require scrutiny, being the:
‘transfer of power from the parliament to the executive’;
‘introduction of the National Cabinet’; and
‘increased reliance on expert decision-makers’.
3.45Many of the pandemic response measures were enacted through the exercise of delegated legislation, which:
…is not subject to the same level of parliamentary oversight, is less transparent, and does not have the same level of representative legitimacy. With respect to restrictions on human rights, the core questions of necessity and proportionality are less likely to be subject to the rigorous examination that is needed before the measures take effect when the restrictions are made by way of delegated legislation, and there is less opportunity for any unintended practical consequences to be identified and addressed.
3.46In December 2020, during the first year of the COVID-19 pandemic, the Senate Standing Committee for the Scrutiny of Delegated Legislation also commented on this matter:
The significant volume of delegated legislation made by the executive, and the frequent exemption of this delegated legislation from parliamentary oversight, pose significant challenges to Parliament’s constitutionally recognised law-making role.
3.47The AHRC suggested National Cabinet could take a ‘leadership role’ during crises and, as such, performs ‘a different role from parliament’. In its view, National Cabinet could ‘evolve to allow for the reassertion of democratic checks and balances, and the strengthening of accountability linkages’.
3.48The AHRC argued a feature of the Australian response to the COVID-19 pandemic was ‘the delegation of extensive decision-making power to medical‑scientific experts’. It noted:
While public health expertise is critically important when making decisions during a pandemic, we must also acknowledge that experts are not infallible, may not always agree, and may (even subconsciously) be influenced by personal values or biases. Hence, even when placing reliance on experts it is important to expose expert advice to a range of different perspectives and viewpoints and to ensure that it is interrogated and challenged before a final decision is reached.
…
Assessing the appropriateness of restrictions, at any given point of time, is a complex task, and one that can rapidly change as the impact of the virus also shifts – such is the nature of emergency responses. Public health experts can only ever provide an incomplete answer to the complex public policy questions that need to be addressed. While measures such as travel restrictions, school closures and mask mandates were all introduced as public health measures to reduce the impact of COVID-19, they all had impacts that extended beyond the effect on public health. The economic and social impacts of the pandemic restrictions are also significant, and need to be factored into the decision-making process.
3.49In the view of the AHRC:
It is also critical to ensure that public consultations and open public hearings are a key element of a Royal Commission. The impacts of the pandemic response measures were not experienced uniformly across Australia. There were significant differences in the severity of restrictions and responses in different areas.
3.50Dr Prasser indicated it would be inappropriate for a royal commission to investigate parliamentary decisions. In his view, it could choose to consider parliamentary decisions ‘up to a point, but it wants to be very careful of an executive government body investigating parliament, which really is crossing the line’.
Public health orders and mandates
3.51Some submitters called for a royal commission to examine the scientific basis of the decisions that informed:
public health orders;
the understanding of the threat posed by COVID-19; and
the vaccination program.
3.52The People’s Terms of Reference submitted that a royal commission should examine the ‘statements, policies, or directives created by Australian governments or their agencies to be observed by health practitioners’. That examination should consider the:
reasonableness and proportionality of those statements, policies, or directives given the ‘available scientific evidence’;
level of consultation health practitioners had in the development of those statements, policies, or directives;
legality of those statements, policies, or directives; and
interaction of those statements, policies, or directives with ‘valid Informed Consent being provided by Australian citizens’.
3.53In relation to the pandemic response measures implemented by state and territory governments, The People’s Terms of Reference argued:
We were told to protect our public health system, to stay away from our hospitals, yet our hospitals are meant to be open to protect and aid us. This absurd denial of services resulted in serious health consequences with hundreds of thousands of missed appointments, delayed diagnosis of serious disease, delayed surgery and an array of mental health effects. Were these restrictions ever assessed or reviewed for the costs and benefits? The oft-repeated statements by the Prime Minister, premiers, health ministers, CMOs, CHOs and medical associations that the vaccines were safe and effective were blatantly false, and there was never evidence and data to support such claims. It was misleading and deceptive conduct that grossly undermined public trust.
Another example was the oft-repeated statements that lockdowns would ensure we could return to normal after two weeks, to flatten the curve. Weeks tuned into months. State and territory governments acted arbitrarily and ad hoc. Lockdowns and mandates never occurred as a whole-of-government response. Again, this was misleading and deceptive conduct that has grossly undermined public trust.
3.54COVERSE argued that the public should be assured ‘that various restrictive measures that were imposed (e.g. lockdowns, quarantine, vaccine mandates, etc.) were based on robust scientific evidence’. It questioned the basis for those measures, and called for a royal commission to:
…probe political and commercial influence on these decisions by actors who may have had significant conflicts of interest or ulterior motives beyond good public health outcomes. Put simply, examine who benefited from government decisions, and what tactics those actors deployed to ensure government decisions that lead to more favourable outcomes for themselves.
3.55The Australian Catholic Bishops Conference highlighted the inequity in some state government lockdown measures. In New South Wales and Victoria, for instance, stricter operating conditions were imposed on places of worship than other indoor public places. It argued ‘churches should have received at least equal attention to other public spaces, like pubs and clubs. Unfortunately, governments often discounted the needs of people with a religious faith’. Those needs should be considered by a royal commission.
3.56The People’s Terms of Reference suggested that many of the public health orders enacted during the COVID-19 pandemic were not effective. In making that argument, it referred to:
…the Great Barrington Declaration, in which the top people from Oxford, Stanford University and Harvard University stated that the lockdowns, masking and closure of schools, or everything related to COVID that was negative, was not going to be very effective at all.
3.57Some submitters raised the issue of access to certain medications and therapies in the treatment of COVID-19.
3.58The AHRC submitted:
The full human cost of the pandemic was substantial and cannot be measured by considering only the direct health and economic impacts. Australians lived with some of the most restrictive pandemic response measures in the world, and measures such as international and interstate border closures, hotel quarantine, extended periods of lockdown, school closures, curfews and other restrictions on movement and association, vaccine mandates, mask mandates, and playground closures all had significant impacts on individuals, families and communities.
3.59It stated:
…governments are able to legitimately restrict many human rights in response to a public health emergency, ‘these restrictions must meet the requirements of legality, necessity and proportionality, and be non‑discriminatory’. An express requirement to consider human rights impacts contained within the terms of reference would ensure that a Royal Commission was able to fully examine these issues.
Policing of COVID-19 public health orders and mandates
3.60The Police Federation of Australia (PFA) stated that the role of police is to ‘enforce the laws made by their respective local, state, territory, and the Australian Government’. During the COVID-19 pandemic, frontline police officers occasionally felt:
…the brunt of community backlashes against some laws, particularly those restricting movements both in and around local communities and especially at borders [sic] crossings where restrictions varied from state to state, often causing significant confusion and anxiety amongst the community.
3.61The PFA stated ‘there were numerous issues and strategies throughout the pandemic period, agreed through National Cabinet, that police were responsible for enforcing, that became problematic both during and subsequent to the pandemic’.
3.62The Redfern Legal Centre reported that it ‘was inundated with people contacting our service seeking legal advice about COVID fines and the public health orders’. Those people sought their advice as ‘the rapid changes to the public health orders made it next to impossible for the public and police to maintain an understanding of the public health laws’.
3.63The ANMF explained that the changing public health directives were unavoidable as the understanding of COVID-19 evolved:
…health knowledge changes all the time. We’re always updating and evolving. It’s one of the most rapidly evolving areas. It’s very difficult for people to understand, in that situation. What we knew about COVID-19 in the first month changed within six months. It changed so fast because we just kept getting more and more information. So it seemed like people didn’t know what they were doing, but we were constantly responding and evolving.
3.64The RACGP also acknowledged the understanding of COVID-19 was constantly evolving and, as a result, the public health ‘recommendations kept changing’.
3.65The PFA:
…note[d] that one of the Terms of Reference to the Royal Commission of Inquiry into Lessons Learned from New Zealand’s Response to COVID-19 included a ‘consideration of the impact on, and differential support for, essential workers’.
Whilst such a Term of Reference appears very broad, in the Australian context, it would enable all the relevant stakeholders in Australia’s essential services, to put forward the key issues that affected their sectors, in the lead up to, during and post the pandemic.
Excess deaths
3.66Some inquiry participants argued that a COVID-19 royal commission should examine the causes of ‘excess deaths’ in Australia since the beginning of the pandemic.
3.67According to the Parliamentary Library:
In 2022 there were an estimates 18,600 to 20,200 more deaths (‘excess deaths’) than might have occurred in the absence of the COVID-19 pandemic. More than half of these deaths were from COVID-19, but the greater than expected number of deaths from cancer, dementia, diabetes, and heart disease highlight some of the pressures the pandemic placed on our health and care systems.
3.68Dr Andrew Madry noted:
…that 2021 was when excess mortality stated trended [sic] upwards. I personally looked into the data in Queensland when there was no locally acquired COVID in the community, and it’s clear…that in the second half of 2021 mortality trends started trending upwards, particularly in the older ages. If you went to 2022, yes, the results are more difficult to interpret because of COVID, but there is an excess of all-cause deaths, even in [sic] you subject COVID deaths.
…
What was the cause? It’s very difficult to say the cause. However, there is definitely a correlation. The vaccines certainly went temporally before. As to the increase in mortality—it’s coincidental that it goes up shortly after; we can correlate with the adverse event reporting system. One of the things the People’s Terms of Reference group is asking for is more detail into the adverse event reporting over that time. If we could have more visibility of the AIMS system, the frontline reporting system, the temporal and causal relationships would be quite obvious.
3.69According to the RACGP, it is impossible to attribute excess deaths to a single cause:
There are numerous causes of death that need to be analysed in a comprehensive way to identify what the causes of death are. It’s not something you can attribute to one thing or another thing like a vaccine or not a vaccine.
3.70The COVID-19 Mortality Working Group suggested the excess deaths in 2022 were most likely caused by:
The impact of [having had] COVID-19 on subsequent mortality risk, particularly heart disease, stroke, diabetes and dementia, which have all been identified in studies;
Delays in emergency care, particularly at times of high prevalence of COVID-19 and/or influenza, and
Delays in routine care, which refers to missed opportunities to diagnose or treat non-COVID-19 diseases and the likelihood of consequent higher mortality from those conditions in future.
Decisions of the Reserve Bank of Australia
3.71Some submissions suggested that a COVID-19 royal commission should investigate the actions of the Reserve Bank of Australia (RBA) during the pandemic.
3.72Senator Gerard Rennick, for example, argued that the RBA’s policies during the pandemic contributed to inflation and ‘inflated house prices’. Senator Rennick proposed that a royal commission should examine the economic impacts of those policies.
3.73It was noted that inflation has increased since the implementation of financial support payments. The Ai Group indicated that higher inflation is not unique to Australia and is occurring in many countries.
Human rights
3.74Numerous inquiry participants suggested a royal commission should investigate the balance between the protection of public health and that of civil liberties and human rights.
3.75The AHRC acknowledged the COVID-19 pandemic was an emergency that ‘require[d] quick and decisive action by government’. The pandemic response measures implemented by state, territory, and federal governments ‘imposed substantial restrictions on individual human rights’. It cited the Democracy Index 2020, which described ‘the pandemic response as leading to ‘the biggest rollback of individual freedoms ever undertaken by governments during peacetime’’.
3.76The AHRC also explained that all countries have an obligation to ‘take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction’. In its view, the pandemic response measures introduced by Australian governments gave ‘effect to these obligations’. During emergencies, it is permissible for some rights to be restricted and ‘many rights contain express limitations within their terms’. The power to determine when and how to limit rights ‘rests upon the State seeking to impose the limitation’.
3.77The AHRC advised that, in limiting human rights during emergencies, governments are required to:
…meet certain core criteria:
they must be prescribed by law;
they must be necessary and proportionate to the evaluated risk;
governments must be transparent about the reasons why they consider restricting human rights is necessary;
any limitations on human rights must be consistent with international law and must not discriminate against people on the grounds of race, sex, age, disability or sexual preference; and
the need for the restrictions must be regularly assessed, and the moment they are no longer necessary, they must cease.
3.78The QNMU suggested that the magnitude of the Australian response to the COVID-19 pandemic requires thorough investigation in terms of its impact on human rights:
Extraordinary measures implemented during the pandemic must be examined through a human rights lens as many Australians were forced to live with some of the harshest and restrictive measures in the world. These restrictions included lockdowns, international and interstate border closures, curfews, quarantine, vaccine mandates and proof of vaccination status. For many, these measures limited their human rights.
3.79CLA called for the terms of reference to ‘examine how complaints can be handled quickly and efficiently when rights are breached, preferably by access to state and federal human rights acts’. The royal commission should be in a position to ‘make recommendations about how civil rights and restrictions in pandemics can be balanced’.
3.80In the context of human rights, the notion of informed consent was raised by some inquiry participants, particularly in relation to the administration of vaccinations and vaccine mandates.
3.81COVERSE proposed that a royal commission ‘explore the issues of valid informed consent, human medical rights, and coercion in the context of the COVID-19 vaccinations’. In doing so, the royal commission should ‘include the voices of the people who have suffered medical harms as a direct result, and who have received no recognition or compensation’.
3.82The AHRC strongly supported the inclusion of human rights implications of the COVID-19 pandemic response in the terms of reference as the:
Pandemic response measures in Australia had substantial impacts on individuals, families and communities. It’s essential that Australia’s pandemic response is fully and formally reviewed in terms of its impact on human rights, and that future emergency planning incorporates human rights considerations as a priority.
Cost-benefit analysis of pandemic response measures
3.83According to some submitters, a COVID-19 royal commission should provide an opportunity to appraise the cost of the pandemic response against its social benefits.
3.84To that end, some argued that a COVID-19 royal commission should consider the costs and benefits of the following aspects of the pandemic response:
lockdowns;
vaccine mandates;
quarantine;
social distancing; and
mask mandates.
3.85The AHRC stated a COVID-19 royal commission should consider the affect the pandemic response had on ‘poor and vulnerable sections of our community’.
3.86An analysis of the lockdown policies implemented by state and territory governments found that their cost was ‘at least 68 times greater than the benefits they delivered’. According to Professor Gigi Foster, Professor of Economics at the University of NSW Business School, ‘there has been no government-issued cost-benefit analysis that transparently estimates and weighs all known or expected benefits and all known or expected harms of the major covid-era policies’. In Professor Foster’s view, the requirement for such an analysis is ‘deeply embedded in the standard policy processes of Australia’.
Committee view
3.87The committee considers that there is an overwhelming case for the establishment of a COVID-19 royal commission.
3.88The COVID-19 pandemic had a severe impact upon Australia. Details of this impact is provided in Chapters 1 and 2 of this report. The health and economic cost of the COVID-19 pandemic was extraordinary. This includes the impact upon individual Australians and their families. There are strong views with respect to a range of issues, including the response of federal and state governments. It is in this context that it is imperative that the Australian government (and state and territory governments) institute an appropriate process to maximise the opportunity for Australia to learn from its experience during the COVID-19 pandemic to assist in preparing for any future pandemic.
3.89In the committee’s view, the Commonwealth Government COVID-19 Response Inquiry is structurally flawed. There are a number of reasons for this view.
3.90First, unlike the inquiries established in the United Kingdom and New Zealand, it does not have the powers of a royal commission to access evidence, including by requiring witnesses to appear and to produce documents. In this regard, any inquiry needs to have the ability to produce a factual narrative of what did occur. This can then form the basis for identifying the lessons to be learned which may then inform preparations for a future pandemic (and, to the extent relevant, to inform responses to a similar event triggering emergency powers). To generate such a factual narrative, there is a need to be able to compel cooperation from relevant witnesses. Given the scale of the impact of the COVID-19 pandemic and the complicated matrix of government responses (at both a federal and state level) that can only occur through an appropriately resourced royal commission. Any other process is sub-optimal.
3.91Second, a major theme running through many submissions is the need to consider the interaction between the Commonwealth and state/territory governments and the inconsistency between approaches adopted by different jurisdictions in response to the pandemic. This cannot be achieved by an inquiry (whether constituted at a state or federal level) which simply looks at the response of a single jurisdiction. In the context of Australia’s federal system, such an approach is not ‘fit for purpose’. The committee heard evidence of examples of royal commissions which have dealt with issues at both a federal and state level through the cooperation of different levels of government. The committee is of the firm view that such an approach would produce the optimal opportunity to learn from Australia’s response to the COVID-19 pandemic.
3.92Third, any inquiry must be (and must be perceived to be) entirely independent of government (whether at a federal or state level). Again, in the Australian context, this can only be achieved through a royal commission. As discussed in this report, the Commonwealth Government COVID-19 Response Inquiry does not have the independence of a royal commission. Perceptions of independence are impacted by the fact that the inquiry is being supported by a taskforce our of the Department of the Prime Minister and Cabinet. Many of the issues raised in submissions to the committee indicate a break down in trust between many Australian and government (federal or state). That makes it even more important that an inquiry be undertaken through a process which is both objectively independent and which is perceived by the Australian people to be independent. In the committee’s view, that necessarily means a royal commission.
3.93Fourth, the Commonwealth Government COVID-19 Response Inquiry specifically excludes unilateral decisions made by state and territory governments. Consider the illogic of this approach in the context of state imposed lockdowns and Commonwealth funded mental health support. As was clear in the evidence received by the committee, there was an increase in mental health issues in the Australian community during the pandemic. Witnesses referred to the negative impact of lockdowns on the mental health of Australians. However, under the terms of reference of the Commonwealth Government COVID-19 Response Inquiry, whilst the issue of mental health support provided by the Commonwealth government is considered, state and territory government decisions to impose lockdowns is not. This does not make any sense.
3.94Whilst the committee has the view that the Commonwealth Government COVID-19 Response Inquiry is structurally flawed, there are two observations which should be made. First, the committee’s view is not intended to cast dispersions upon those who are working on or are supporting the work of the inquiry. No doubt, they will bring to bear all of their experience and skills to maximise the outcomes flowing from the inquiry. Second, the committee agrees that the matters included in the terms of reference of the inquiry should be considered by a royal commission. In this regard, the committee has endeavoured to incorporate each of those matters dealt with in the terms of reference of the Commonwealth Government COVID-19 Response Inquiry into the proposed terms of reference for a proposed royal commission.
3.95In the committee’s view, the institution of a royal commission would assist in restoring public trust in all levels of Australian government. The Australian people deserve to have a better understanding of why specific pandemic response measures were adopted and to convey their views on the costs and benefits of each of those response measures, especially given the level of disruption some of those measures had on their lives.
3.96In addition to developing a deeper understanding of the costs and benefits of Australia’s pandemic response measures so that governments at all levels (and the broader community) can learn in preparation for the next pandemic (or, to the extent relevant, another emergency event), it is important that Australians are afforded the opportunity to share their personal experiences to tell their stories. It is noted that this is an important component of the UK Covid-19 Inquiry. The committee heard moving testimony during the course of this inquiry. Such testimony underlined both the need for a royal commission but also the importance of affording Australians the opportunity to tell their story (whether in public or in camera). The Australian people have every right to demand this opportunity of their governments—at both federal and state/territory level.
3.97Prior to detailing the terms of reference proposed by the committee, one further matter warrants specific comment. Some parties who submitted to this inquiry called for a COVID-19 royal commission to consider the origins of the SARS‑CoV‑2 virus. Whilst the committee appreciates the perspective of those who made such submissions and notes that this is a matter which has generated much commentary, the committee does not consider that a royal commission constituted in Australia is the right forum for undertaking such a task. It is the committee’s view that the focus of any royal commission (and the resources deployed in support of a royal commission) should be dedicated to learning from Australia’s experience during the COVID-19 pandemic and maximising the prospects of applying the benefit of such learnings in preparation for the next pandemic or, to the extent relevant, to preparations for another emergency.
3.98The committee proposes the following terms of reference for a COVID-19 royal commission. The terms of reference should be open to public consultation prior to the appointment of commissioners and the formal establishment of the royal commission.
Terms of reference for a COVID-19 royal commission
3.99The objective of the Royal Commission is to:
(a)examine, consider, and report on preparations for and the response to the COVID-19 pandemic by the Commonwealth, State and Territory Governments; and
(b)make recommendations to inform preparations for a future pandemic.
3.100In meeting its objective, the COVID-19 Royal Commission must examine, consider and report on the following matters (without limitation):
(a)the preparedness of the Commonwealth, State and Territory Governments for a pandemic, including: (i) the adequacy of pre-pandemic planning; (ii) whether such planning considered the health, social, economic and human rights implications of any proposed response; (iii) the consistency between pre-pandemic planning and actual responses; (iv) the reasons for any discrepancies; and (v) how planning and preparedness may be improved for a future pandemic;
(b)the governance structures and decision-making processes of the Commonwealth, State and Territory Governments relevant to the response to the pandemic, including:(i) coordination between the respective governments through the operation of the National Cabinet, the National Coordination Mechanism and the Australian Health Protection Principal Committee and otherwise; (ii)any inconsistency in approach between respective governments and the impacts of such inconsistency; (iii) the availability and use of data, research and expert evidence; (iv) the adequacy of checks and balances on the exercise of emergency powers; and (v) engagement with representatives of different sectors and cohorts of the Australian community, including non-government organisations representing vulnerable and at risk communities;
(c)the effectiveness and appropriateness of Commonwealth, State, and Territory Government responses to the pandemic, including (without limitation) in relation to:
(i)public health measures (including testing, contact tracing, and quarantine protocols);
(ii)broader health supports for people impacted by COVID-19 and/or lockdowns (for example, mental health and suicide prevention supports and access to screening and other preventative health measures);
(iii)procurement of COVID-19 vaccinations, key medical supplies such as personal protective equipment, and the provision of quarantine facilities;
(iv)the health sector (including hospitals, general practices, pharmacies and health advisory services);
(v)the aged care sector (including labour shortages, protecting the clinical vulnerable and restrictions on visitation rights);
(vi)the education sector (including early childhood education and care, school closures and higher education);
(vii)housing and homelessness;
(viii)family and domestic violence;
(ix)industry and business (including supply chain and transport issues, labour shortages, and support for specific industries, small business and the self-employed);
(x)health and care sector workers, police and other frontline and essential workers;
(xi)people from culturally and linguistically diverse backgrounds (including those located in particular geographic locations);
(xii)First Nations peoples;
(xiii)children and young people;
(xiv)women;
(xv)people with disability;
(xvi)elderly people; and
(xvii)the justice system (including the operation of the court system, prisons and other places of detention).
(d)the effectiveness and appropriateness of Commonwealth, State and Territory government support provided to different sectors, groups and cohorts of the Australian community, including (i) whether or not such supports should be modified for future pandemics; (ii) identification of any vulnerable or “at-risk” communities who received inadequate support; and (iii) any additional support required to address ongoing issues arising from the pandemic;
(e)the effectiveness and appropriateness (including from a human rights perspective) of public health orders and policies, including:
(i)lockdowns;
(ii)school closures;
(iii)social distancing;
(iv)remote working arrangements;
(v)mask mandates;
(vi)interstate border closures;
(vii)international border closures;
(viii)quarantine arrangements; and
(ix)vaccination, including vaccine mandates imposed by both government and non-government organisations;
(f)the effectiveness, appropriateness, and consistency of public communications strategies related to the public health orders and the policies listed in paragraph (e) and government engagement with media, including social media platforms;
(g)the governance structures and decision-making processes relating to: (i)medical treatment protocols; (ii) the COVID-19 vaccines; and (iii) regulation of medical health practitioners;
(h)the design and operation of the COVID-19 Vaccine Claims Scheme, including: (i) the experience of Australians seeking to access the scheme; and (ii) any enhancements or modifications which should be made to the scheme;
(i)the costs and benefits associated with the pandemic response measures, including consideration of the impact of such measures upon: (i) public health outcomes (both during and after the pandemic); (ii) public finances; (iii) the economy; (iv) mental health and well-being; (v ) human rights; and (vi) social cohesion; and
(j)the lessons which can be learned from the response to the pandemic and improvements which can be made in preparation for a future pandemic.
3.101The committee recommends that the federal government establishes a royal commission to examine the Australian response to the COVID-19 pandemic and the consequential impacts on the Australian community.
3.102The committee recommends that the federal government encourages the states and territories to pass complementary legislation that would enable them to participate in the royal commission. State and territory governments that do not initially join the royal commission should be able to join the royal commission at a later date if they agree to do so.
3.103The committee recommends that the federal government adopt the terms of refence outlined in paragraphs 3.99 and 3.100 as the draft terms of reference.
3.104The committee recommends that the draft terms of reference for a COVID-19 Royal Commission are made available for public comment to allow the people of Australia an opportunity to provide input on the terms of reference prior to adoption.
Senator Paul Scarr
Chair