The Covid-19 (Public Health Response) Bill - Legislate in Haste?

Today Parliament will debate, under urgency, the Government’s COVID-19 (Public Health Response) Bill, the bill that provides the legislative underpinning to New Zealand’s move to Alert Level 2, and the next step in our response to, and recovery from, COVID-19.

Legislation is needed because it is clear that the Health Act 1956 is not an appropriate mechanism for what is now required. 

The debate will occur under urgency – and it must - so that the measures are in place before we move to Alert Level 2 at 11.59pm on Wednesday night. A draft of the legislation was made available to the Opposition and a selected group of others last night, with less than 24 hours to review the Bill (and in the case of non-MPs) to make submissions on it before it is considered.

Putting aside what is an unnecessary lack of transparency in such important legislation (more on that later), given the time available, the issue for MPs in considering this Bill comes down to one simple question:

Does this Bill go as far as is needed to secure New Zealand’s response to COVID-19, but exactly no further?

New Zealand’s ‘team of 5 million’ has banded together during Alert Levels 3 and 4. There is widespread acceptance that most, if not all, of the measures taken were necessary and effective. There is also widespread understanding that things will not be the same for some time, and that effective measures need to be in place to ensure New Zealand does not experience what we have seen in other countries that have and are now experiencing new spikes in cases following the release of tight restrictions around freedom of movement. 

But in doing so we also need to ensure that too much power is not granted without appropriate supervision and recourse. As we have seen in Levels 3 and 4, with the best intentions in the world, mistakes and overreaches occur.

So does this legislation meet that test?

The answer from us is a firm yes…and no.

Does the Bill go as far as is needed to respond to the next stage in our fight against COVID-19? Yes. Does it, in places go too far or open itself up to overreach? Also yes.

In (very short) summary, the Bill creates a concept of a ‘section 11 order’ that – like the Health Act Orders under Levels 3 and 4 - can be used by the Minister and/or the Director General of Health to impose restrictions on what we can do, where we can go, how far away we can be from each other and how businesses and organisations can operate. Unlike orders under the Health Act, these powers can also be used when the Prime Minister considers that it is appropriate to activate them. 

That power is sensible, as it prevents New Zealand needing to be a state of civil defence emergency (which also comes with extraordinary powers) for the extended period that may be required for the COVID-19 response.

Some clarity is also brought to the nature of the powers that can be exercised, in an attempt perhaps to front run some of the interpretive arguments that have been raised in relation to the Level 3 and 4 Orders. That clarity is useful.

But the powers granted are extensive. They include ‘without limitation’ the power to require anyone to stay in one place, to refrain from doing ‘specified activities’, to be isolated, and to report for (and one would assume submit to) any medical examination or testing. Failure to comply could result in imprisonment.

In our view, with one exception, the powers granted under section 11 are appropriate. They are also so extensive that the expansive ‘without limitation’ is both unnecessary and undesirable. We understand that the response to COVID-19 is evolving and fast-moving, and there will always be a desire to provide for the unexpected. However, in addressing restrictions on fundamental rights such a blanket approach is inappropriate. The Government has the power to respond quickly through defining specified powers if that might be needed, and if it hasn’t anticipated a necessary response it should be expected to do so quickly and openly.

The power to require anyone to submit to medical examination and testing warrants special mention – and in our view – amendment. The right to consent or not to consent to medical treatment is fundamental. Yes, the need for testing is clear, and you can anticipate a need to deal with circumstances where an individual refuses to do so. But the answer is not to require a person to undergo medical examination and testing. Rather, a balanced response would be to empower the direction of a person to undertake examination or testing and, in the event of a refusal, to require isolation or quarantine. It may be that this is in fact what was intended, the Bill uses the phrase ‘report’ not ‘undergo’, but such a lack of clarity is not good enough.

Section 11 orders, once authorised, can be made by the Minister and apply either regionally or nationally. They can also be made regionally by the Director General of Health, if in his ‘opinion’ they are required urgently. A 48 hour notice period is required, except where the Minister or the DirectorGeneral is ‘satisfied’ that it should come into force urgently. Neither the phrase ‘satisfied’ nor ‘opinion’ are, in our opinion, satisfactory. In both cases, a minimum safeguard should be that that opinion or satisfaction should be based on reasonable grounds.

There is an obligation to keep section 11 orders ‘under review’. This would appear important in the case of orders by the Minister, which are not otherwise time-limited (orders by the Director General are limited to one month). It is also somewhat meaningless. What does ‘under review’ mean? How would it be enforced? A better solution would be for order made by the Minister to be expressly time limited but able to be renewed. The New Zealand Council for Civil Liberties has proposed three months as an appropriate limit on order made by the Minister. We believe that that is generous.

It is evident that care has been taken to ensure that these powers, whilst necessary, are subject to some supervision. All section 11 orders are automatically revoked if Parliament does not vote to authorise them within ten days. This is appropriate. But the real politik is that the Government is (mostly) in control of Parliament. In our view, given the extensive powers able to be exercised under section 11, it would be appropriate for there to be formal provision for any orders made under section 11 to be tabled in the House, with an accompanying Bill of Rights analysis, and for those documents to be subject to a limited debate before a motion approving the orders is made. That would ensure that overreach, accidental or intentional, is transparent and open to political, rather than legal , scrutiny.

Finally, a note on transparency. There is no question that this Bill is necessary. It has been necessary since the beginning of Alert Level 4. There is also no question that extensive and complex powers are required to manage our response to COVID-19. But legislation made in haste is rarely optimal. In a perfect world, this legislation should have been prepared and released much earlier. Instead, the legislation is being introduced with both urgency and limited opportunity for scrutiny, against the background that some legislation is essential for New Zealand to move to Level 2 in less than 48 hours’ time.. It is also being introduced in circumstances where any MP who stands between New Zealand and Level 2 can expect significant criticism. Further, the approach simply fails the standard of transparency that the Government has set for itself, and unnecessarily so.

 This legislation should have been widely and publicly made available – as early as possible - so that comments from as many possible voices could have been included. Right now, New Zealand is living up to Sir Geoffrey Palmer’s characterisation as the fastest lawmakers in the west. That is not a standard to strive for.