Coronavirus: COVID-19 law isn't the problem, it's the interpretation - expert

New legislation which gives the Government authority to enforce level 2 restrictions isn't a problem on its own, a prominent law expert says - it's how agencies like the police might wield their new powers. 

The Government on Wednesday passed the COVID-19 Public Health Response Bill under urgency, with the support of Labour, NZ First and the Greens. National and ACT opposed the Bill. 

Attorney-General David Parker initially said it would provide "a different legal framework for responding to COVID-19 over the next two years or until COVID-19 is sooner brought under control". The time limit was later changed to 90 days, after rights groups protested.

"The Government needed to legislate as we moved into level 2 because there had been some legal questions raised about some of the powers exercised in the higher levels, and it would have to do so rapidly," University of Auckland law professor Jane Kelsey told The AM Show on Thursday.

"But unfortunately, because there are really extensive coercive powers in this legislation, the way it's gone about it has undermined quite a lot of the sense of trust and compliance it's relied on to date."

With the nation's formal state of emergency ending overnight, the Government needed "bespoke" legislation to make level 2 rules enforceable. It takes some of the decision-making power from Director-General of Health Ashley Bloomfield and transfers it to Cabinet and the Minister of Health. 

"I didn't really know I had [those powers], and we had to exercise them," Dr Bloomfield told The AM Show on Thursday. 

"There was no joy in having to exercise them because of the situation we were in, but what I am pleased with is those powers then enabled us to have the lockdown and to do that successfully.. The new law actually doesn't require me to exercise powers - the powers lie with Cabinet, they make the decisions, then the Minister of Health is able to exercise powers to give effect to the alert level 2 restrictions."

The whole Bill took just two days from its introduction to being made law. Among its changes is giving police the power to enter homes without a warrant if they suspect people are breaking rules designed to limit the spread of COVID-19. 

"Despite claims by some critics, the powers of the police will be narrower from midnight tonight than they have been for the past seven weeks," Parker said on Wednesday. 

But Māori, who've been on the wrong end of poor police decision-making in the past, have every right to fear the new law, Prof Kelsey says. 

"The Government's in a no-win situation. What I hope will happen now is that they will send this not only to a select committee and make necessary amendments as a consequence, but they will conduct a proper discussion with Māori as to how to deal with much of the angst that was expressed yesterday... That will go quite a long way to defusing what is potentially a quite inflammatory situation...

"It hasn't gone to a select committee, and that would have helped to iron out some of the issues that have caused a lot of angst since the legislation became public - particularly in relation to Maori - but also it would have bought more buy-in to people cooperating with the exercise of these powers." 

The Human Rights Commission has made a similar request, requesting the legislation be reviewed by select committee at "regular terms" and the Government be "open to any recommended changes". 

"If the Government wishes to retain the public's trust and confidence, it must honour human rights and Te Tiriti," said commissioner Paul Hunt.

The NZ Council for Civil Liberties (NZCCL) and Amnesty International both called for the Bill to be referred to select committee for a review, post-royal assent. 

"I think one of the problems with the govt's COVID-19 Response Bill is that it's a framework for making orders rather than a set of definite rules that we can assess," NZCCL head Thomas Beagle tweeted. "The flexibility is a double-edged sword, and the govt is asking us to trust that they'll wield it properly."

This is Prof Kelsey's fear also.

"I don't think the problem is necessarily with the legislation - it's concerns about how it may be implemented on the ground, and the lack of protections that exist in practise because of many of the examples that we've seen in the past about how emergency powers like these are used." 

Education Minister Chris Hipkins, during the Bill's third reading on Wednesday, said the virus "does not respect civil liberties". 

Jane Kelsey.
Jane Kelsey. Photo credit: The AM Show

The Green Party, which in the past has spoken out against giving more powers to the police, said there were "extra considerations" to take into account during a pandemic.

"But let me be also clear: this is a global pandemic the likes of which I have not seen in my lifetime in this House, the likes of which the Green Party has not had to deal with in our history," said co-leader Marama Davidson.

She said while minority groups had valid reasons to be concerned, the Bill couldn't make existing inequalities any worse, Newsroom reported.

Prof Kelsey said the Greens likely had little say over the contents of the Bill.

New Zealand has had no new cases of COVID-19 reported in the past two days, one of only a handful of countries with the potential to eliminate the virus in the near future.

 

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