COVID-19 Public Health Response Amendment Bill

Thank you, Madam Chair. I have a couple of questions for the Minister in the chair, Megan Woods. The first is in respect of her Supplementary Order Paper (SOP) 566, and I note that clause 9, which inserts new section 33A, inserts further subsection (4), which reads, “Any regulations made under this section may not be held invalid just because they confer a discretion, or allow any matter to be determined, by any person whether or not there are prescribed criteria.” I’m a little confused by the Government’s intention in respect of that addition, and I would appreciate—the committee would appreciate, I think—just an elucidation into why that was necessary and what that was intended to do.

The second question is—with apologies to the Minister if she touched on this in her second reading speech, but she mentioned this in her first reading speech, and that was in respect of the intention of the regulations to provide for a compassionate exemption for Māori returning to attend a tangi and to acknowledge the special relationship through the Treaty that Māori have. I support that entirely; I have no question with that, but I am interested in whether or not it’s the Government’s intention to pass a regulation that is more broad than that and actually provides for a compassionate exemption for all New Zealanders who suffer a bereavement and are required to return home to be with their loved ones, or whether there will actually be some kind of distinction made on the basis of iwi affiliation. So there are just two questions to kick off.

In answer to the member’s first question about the SOP, clause 9, it is just there to be consistent with section 17 of the principal Act re the section 11 orders. So that’s the purpose of that amendment. In respect to the second question that the member posed around the reference I made in my first reading speech around the importance of making sure that Māori are not disproportionately affected and that we are not breaching our Treaty of Waitangi obligations, this will be in the context of a broader exemptions and waiver regime that will allow compassionate waiving and exemption from fees for all New Zealanders returning on compassionate grounds, whether that be for funeral or for tangihanga or whether it be for a very ill or dying relative. It won’t be separate provisions; it will be under a broader set of provisions around the ability to waive, but part of what we did have to do in checking the legality of the regime that we were setting up was make sure we were consistent with Treaty of Waitangi obligations.

I thank the Minister for those answers. In respect of the first one, it’s pretty quick to come back with an answer to that question, but I’m afraid I’m none the wiser about the addition of subsection (4) into section 33A, so if there is time in the committee of the whole House, perhaps we could get a slightly fuller explanation of regulations that are made that won’t be held invalid because of a certain thing that might have occurred.

The answer to the second question in respect of bereavement, that’s great. It does raise the question—and I apologise if this has been addressed—of whether or not this bill has gone through a New Zealand Bill of Rights Act section 6 vet and what the outcome of that vet was.

In answer to that question in terms of the New Zealand Bill of Rights Act vet, yes it has, and it is seen as consistent with the Act.

Very good—thank you.

Thank you, Mr Chair. I indicated that I would ask these questions in my second reading speech. I’m just keen to get some answers from the Minister Dr Megan Woods about the changes to section 11, in clause 7, just to get a little bit more detail around those changes, what they were there for—I’m just genuinely interested.

Section 11(1)(a)(xiii) is now having a couple of insertions of new words: “report for and undergo a medical examination”—I’m keen to know why we’ve included the word “undergo”, and what were the problems that we were encountering that have meant that we need to now have that extra word inserted in there. Secondly, in that same sentence, “testing of any kind,”—that’s been inserted as well—that’s brand new. So I’m keen to know why that’s being inserted and what that means.

At this stage, the only type of testing that we have, obviously, is the one we’ve heard about, which is the very invasive one that goes down your nose. But is she intending to have other types of testing done, and does that include blood tests? I’m just interested in why that’s been included in there. That’s the first part of my question.

The second part of that question is the other amendment to section 11, and I mentioned this in my second reading speech as well. It says that to “satisfy any specified criteria before entering New Zealand”, and then it gives us an example, “which may include being registered to enter” a quarantine facility in New Zealand. I understand that. In terms of the places, you’ve made that really clear in your speech. But that’s just an example—“which may include”—so what else do you think that might include? Are we, here in this part, talking about potentially testing people before they come home or vaccinating people before they come home?

I’m just keen to explore what else could be included in that section, because it only gives that one example. It’s brand new and it says “any specified criteria”, so I’m keen to know what other examples the Minister might be thinking of when we read those words “any specified criteria”. Thank you.

Thank you, Mr Chair. I want to take the opportunity to speak to Supplementary Order Papers (SOPs) 563 and 564 in the name of the Hon Gerry Brownlee, and in particular commend the amendment to clause 8 being prescribed by SOP 564. We’re in an interesting situation at the moment where we have the two main parties in Parliament supporting the bill the bill and the intention of legislation broadly, but disagreeing on the extent of the charging regime.

We’re also some six weeks or so away from a general election that will determine who gets to give effect to the legislation we are passing, and what Mr Brownlee’s SOP 564 does is provide for, but not require, a broader range of charges to be laid, including that those people who intend to reside in New Zealand for 90 days or more are not exempt from the charging regime. That doesn’t bind this Government to do that under regulation if it has the privilege after 19 September of doing it. But the failure to pass his SOP would constrain a National-led Government in delivering its intended charging regime, and so what Mr Brownlee’s SOP is doing is avoiding the need for us to come back to Parliament and make amendments under primary legislation should it be the next Government’s wish—and I can tell you that it is the Government’s wish that a more comprehensive regime is put in place.

I think SOP 563 is also something of a belt and braces amendment that will enable a future Government to provide for a more comprehensive charging regime. And, therefore, if the Government is committed to the principle of flexibility in primary legislation and is nimble in writing regulations that do give effect to whoever is in Government in three months’ time, then it would, I think, behove the Minister to think carefully about whether or not this is an appropriate amendment to make to the bill. It doesn’t bind her to do something she doesn’t want to do if she has that privilege in a couple of months’ time. But it certainly means that the House will not need to spend precious time.

We are already a week behind the legislative programme this year due to COVID, and so it will enable a future Government to be able to do that should it wish. And I would add, actually, that I shouldn’t rule out the possibility that, on reflection, a Labour-led Government might also want to be a little more assertive in its charging regime because it’s certainly been recently mousy in its approach so far. When we look at $10 million as opposed to a billion dollars, I’m confident they won’t have that choice. But should they do, it’s not beyond the realms of possibility that they should be a little more bold in providing for greater charging regime than they’re currently committing to.

Thank you, Mr Chair. I’m just keen to explore with the Minister—those questions I asked before, it would be great if they could be answered, but I’m also keen to explore whether or not the Minister has had any advice, because we haven’t seen any detail, about the cost of recovery and the cost of administering this framework. The reason that I’m asking that is because we’ve had an indication from the Labour Party about the kinds of exemptions and the kind of regime that they want to put in place, and we understand that that may recover up to $10 million. Obviously, we know that the total cost of this could blow out to over a billion dollars next year alone, not including this year, but what I’m keen to explore is what advice this Minister has had on the cost of running the regime, of figuring out who’s exempt, doing those individual exemptions, the cost of recovery of money that’s unpaid, part payments—there seems to be quite a large department of people who are going to be required to put this in place and figure out those exemptions and to then go and collect that money.

So given the very small amount, relatively, of money that is being potentially collected under this Government’s—or the Labour Party’s, at least—suggestion of what we should recover, it’s only a very small proportion of the total, and I’m keen to understand what the figure might be of collecting and imposing this regime so we can see what we’re actually getting, because if it’s going to cost us $5 or $6 million to recoup $5, $6, $7 million, then what is the point in putting this in place?

Mr Chair, thanks for allowing me to take a call in this committee of the whole House debate. I want to speak in support of the Supplementary Order Paper (SOP) in my colleague Gerry Brownlee’s name, SOP 563. It relates to escapees, and I want to get a clarification from the Minister on whether she’s had any advice on the costs—we’ve had a number, of course, of reported escapees over the last few months, and I want to get an indication from the Minister of the costs of actually going out and getting them back, and what are the costs of actually looking after these escapees, and then whether that cost should be borne on the taxpayer or whether there’s potential to actually charge the escapees for, in fact, breaching their quarantine conditions.

I think, actually, SOP 563 seeks to address that. It seeks to amend the framework that allows for charging where you possibly break your quarantine or managed isolation and you’ve got to actually help recover the cost of that. So I want to get the Minister’s thoughts around any advice that she’s had, her party’s view on that, whether she’s willing to possibly support that SOP. And why not SOP 563? I think the New Zealand public certainly would be of the mind—at least people in Northcote, who I represent—that in fact, if you do escape from a facility, and there’s a huge cost in actually looking after you and taking you back, then, actually, most people out there would say, well, you should bear the cost of those things.

So we’d like to get some clarification from the Minister on SOP 563.

Thank you, Mr Chair. I’ve just got a quick question on the charges and the cost recoveries for late payment of the fees. On what basis will that be calculated? It’s not prescribed in here. Are the regulations going to recover it at the market rate? Is it going to be some sort of discount rate? Is it going to cover the debt recovery costs as well? For debt recovery officers or companies that are employed, will those costs be recovered out of the people who are paying late, or does that go on top of the other costs? So just an explanation around that would be helpful, I think. Thank you.

I raise a point of order, Mr Chairperson. I raise a point of order under Standing Order 111(2), which relates to relevance in terms of debate. What I ask you to consider is that some of the debate is actually considering the content not of the bill that is before us but of the regulations that have been foreshadowed. It seems to me that that may not actually be relevant to the question that is before the committee. I ask for your consideration and ruling on this.

That’s entirely up to the presiding officer. We are in urgency and this has not gone through a select committee. I’m going to allow it to the extent that it’s relevant to the bill. They become debating points within the whole debate on this bill. It’s up to the Minister whether she addresses it or not, and other members.

Thank you, Mr Chairman. I’ll respond to some of the questions that have been put. One was around section 11(1)(a)(viii) of the COVID-19 Public Health Response Act and the amendments that have been made there. They have been made to make it more clear that its meaning is not changing as a result of the amendment, and it makes sure that it also aligns with similar powers in section 70 of the Health Act.

In response to a question that was put by Erica Stanford, the second change in relation to section 11 is to enable and require people to have a booking in a managed isolation or quarantine facility before they arrive in New Zealand. So this is the system that we’ve been talking about for some weeks now where we will be making sure we’re having complete alignment between demand and supply by setting up a system where people will have a place already assigned to them in a managed isolation and quarantine facility before they arrive in New Zealand, and this will be a critical tool that we do to ensure that we are keeping our managed isolation and quarantine facilities just that: managed.

Also, under the Minister of Health’s works order under section 11, they must be satisfied that any limitation on the New Zealand Bill of Rights Act is justified, and this was a key requirement added to the bill. So this is one of the things that we have to make sure that we’ve got proportionate and justified—limitations on the normal kinds of rights that would be there.

There were also some questions around clause 9. Clause 9 inserts new section 33A(4) and this is the provision which is aimed at preventing cost recovery regulations being overturned just because they allow a decision maker to exercise a discretion or do not set any criteria for exercise of the discretion.

A question was put around whether I’d received any advice around the cost of collection of the fees under the regime that we’re looking at standing up. The answer is yes. The advice that I’ve had to date, and I’ve spoken about this publicly, is that the cost of the regime that we’re standing up in terms of collections will be around $600,000 a year. In terms of the complexity of administering the additional waiver and exemption scheme that will need to sit alongside that, obviously that will be much lower, because this scheme will not be charging those New Zealanders who are returning home permanently. What I’ve also spoken about publicly is the $30 million - odd that it would cost to stand up a scheme more akin to the scheme that the Opposition are talking about, as set against the kind of modelled recoveries of somewhere in the low scenarios of around $125,000, that would be under the scheme that the Opposition are talking about.

Then the member asked me to respond to the Hon Gerry Brownlee’s Supplementary Order Paper in terms of seeking cost recovery from those who abscond from our managed isolation and quarantine facilities. This is an area that I have received advice on, and something that we did explore with officials. There are a couple of components to the answer to this. The cost of policing and the cost of making sure that the police are bringing back escapees, of course, are enforcement activities and are part of the existing Public Service, and hard to separate out, and we’re not anywhere proposing user-pays policing; it’s not something that we see as a way to ensure the security and safety of New Zealanders in any realm, let alone when it comes to making sure we’re keeping COVID out of our country.

What there is is already provision under section 26 of the principal Act, which makes it a criminal offence to escape from a managed isolation or quarantine facility, and that includes a fine of up to $4,000 or six months’ imprisonment, and the advice that to seek further cost recovery because someone had absconded would actually constitute double jeopardy and would not be something that legally could be done.

I just want to go a little bit deeper into amended section 11, set out in clause 7—the second change. The Minister in the chair, the Hon Megan Woods, in her answer made it clear as to what this change is, as set out in new section 11(1)(a)(x): “satisfy any specified criteria before entering New Zealand from a place outside New Zealand,”. Now, in her answer, she made it very clear that that is about making sure that we are managing the amount of people who are coming into New Zealand so we can make sure we have places for them. I totally understand that. It makes absolute sense. I get that. This bit that we’re inserting doesn’t say that. It’s pretty ambiguous. I mean, it gives an example: “which may include being registered to [enter a quarantine facility]”. But I want to know why the Minister just didn’t say that in this change, because it’s actually very wide and very broad. It says, “satisfy any specified criteria before entering New Zealand” and you’re going to have people who say, “Well, what does that mean?”

You’ve given an example: “which may include being registered to enter [a quarantine facility]” and I totally understand that. But the fact is that this section—or this new part of it that’s being inserted—doesn’t do exactly what the Minister said. It’s far broader than that and it seems to be sloppily drafted and would lead people to think that there may be other things—in fact, it does allow other things. It says “satisfy any specified criteria”, which will lead people to think that before you can come home, there will be other things that you have to undertake, whether it’s testing or quarantining or vaccination or whatever it is. I mean, we don’t know because not here. But wouldn’t the Minister not agree that that is very broad, quite sloppy? If that’s not the intent—if her intent is just to make sure we’ve got enough places in New Zealand, as she said, why doesn’t it just say that? Why is it so broad to say “satisfy any specified criteria”? And would she, potentially, look at an amendment that would tighten that up?

Look, I’m happy to answer that. I think the member’s probably answered the question herself in the course of her contribution—that this is a framework piece of legislation for which secondary instruments, regulation, will set specifics. But the critical part of this legislation is making sure it is futureproofed. This is a rapidly evolving global situation. It could in the future include the requirement that someone is vaccinated, for example, if there is access to a vaccine in the future and that is something that the legislation will have the legal framework to allow for.

Erica Stanford: So just to be—

CHAIRPERSON (Adrian Rurawhe): Erica Stanford.

Oh, sorry, Mr Chair. I apologise. Just to be absolutely clear: this legislation in this part lays the potential future groundwork for people to be required to be vaccinated before they enter New Zealand.

I think I’ve answered that quite fully and addressed it—that it would allow the legal instruments if that was a requirement. I’m not saying it will be. I’m saying it does allow the framework. We at this point, obviously, do not know if there will be a vaccine, when there will be a vaccine, or what the efficacy of a vaccine will be or what the evolution of efficacious vaccines around the virus would be. So there does have to be an element that allows for the dynamic situation we’re dealing with, or it could be that we have more medical understanding of the virus and the way in which it operates and there could be ways in which people could be required to isolate before getting on to an aeroplane.

At the moment, the bottom line is everybody has to do 14 days’ managed isolation in a quarantine facility in New Zealand with testing around day three and testing at day 12 showing negative before they are released from a facility. But we want to set up a framework that does allow for the evolving nature of our medical understanding of the virus.

There was also a question that was put to me—while I’m on my feet, I will answer it—around how we will handle late payments under the system, how that will be calibrated, and who they will be recovered from. This, of course, will all be covered off in regulations, and that is the design of the framework that we’re putting up.

The question was put that the amendments set out on Supplementary Order Paper 566 in the name of the Hon Dr Megan Woods be agreed to.

Amendments agreed to.

The question was put that the amendments set out on Supplementary Order Paper 563 in the name of the Hon Gerry Brownlee be agreed to.