COVID-19 Public Health Response Bill

As I mentioned in my second reading speech, we have had some good suggestions come forward from members. I think the most important of them is to require this legislation, effectively, to be refreshed every 90 days, which was a suggestion from the National Party, similar in effect to the request by the ACT Party that the final expiration of this be one year rather than two. The position that we’ve landed in the Supplementary Order Paper is that every 90 days Parliament has to pass a motion that it be extended for another 90 days. Parliament can choose a longer period if it wants, and it might want to do that around the time of the election if there was risk that Parliament wouldn’t be resitting within that 90-day period, but we have that extra level of protection put in. That’s an amendment made by Supplementary Order Paper 497, shown in a tracked-changes form on the floor.

The other significant change which I’ll mention now is to limit the range of people to whom an enforcement power can be delegated to Crown agencies—so like Customs, for example—and Crown contractors. But ordinary people cannot be delegated too if they’re not part of the Crown. I’m sure other issues will arise during the committee stage, which I’ll respond to as they arise.

💬 Chris Penk: Mr Chair.

💬 Hon Michael Woodhouse: Mr Chair.

I call—I was going to call Chris Penk, but he sat down.

💬 Chris Penk: I will defer to my colleague.

CHAIRPERSON (Adrian Rurawhe): I will give the call instead to the Hon Michael Woodhouse.

Thank you, Mr Chair. I’m not even sure which microphone I’m using—there we go. I appreciate my colleague’s deferral. We are on Part 1 of this bill, and I have two—one’s a comment and one’s a question, I guess. I haven’t been privy to the discussions between the National Party and the Attorney-General’s office in respect of an amendment to clause 3, but I would note that if the relevant period is described as the longer of the following of a period of 90 days after the commencement date or the period specified by a resolution of the House of Representatives, the likelihood is that the first review of this and resolution by the House may not take place until November, which is actually six months away. And so the Attorney-General may want to clarify what the intention is in respect of the first period of the following—the passage of this Act and a resolution—and whether the House will have an opportunity to consider that resolution before the 52nd Parliament rises for the 2020 election period.

The second question I have is in relation to clause 4—the purpose of this bill—because I think this goes to the heart of the concern that I certainly have and that members of the public have expressed to me. When we have an epidemic notice or we have a state of civil emergency, it is because there is a material risk that an event will arise or has arisen that requires the powers of the Civil Defence Emergency Management Act. This bill is designed to provide powers, effectively, when those conditions aren’t met. But I note that in paragraphs (a) and (b) the words “prevents” and “avoids” are being used. Now, it says “and limits the risk of, [an] outbreak” or “mitigates … the actual or potential adverse effects of the … outbreak”. But the words “prevents” and “avoids” means that we can be in lockdown from now until a vaccine is found, because it’s only when a vaccine is able to be administered to the public that we can prevent and avoid the actual or potential adverse effects of the COVID-19 outbreak. This is, essentially—the powers we are giving to the Crown, the executive, are to hold us in a state of perpetual fear and emergency and a response to that.

I’ve got to reflect, actually, on where we were—[Bell rung]

CHAIRPERSON (Adrian Rurawhe): The Hon Michael Woodhouse.

That’s all right. I think I understand what’s happening there, Mr Chair.

We have moved an awful long way from when the director-general and the Minister of Health assured us months ago that jumping up and down in a mosh pit for two hours with someone who was positive with COVID does not constitute a close contact, but, if I get in the lift in the parliamentary precinct with one of my colleagues for 10 seconds to go from the first floor to the third floor, that’s now somehow prohibited. Have we got to the point where we are in a state of perpetual existential fear?

💬 David Seymour: Depends what the member’s doing in the lift.

Yeah, well, touché, Mr Seymour. That’s now on Hansard.

The point I’m making is that if we are going to pass a piece of legislation to prevent this happening, we’re always going to be in a state of preventing it from happening and, therefore, we’re always going to be in a state of perpetual partial lockdown, and I think it’s really important that the House understands whether that’s what the country is going to be faced with for, potentially, the next 18 months, because I am as aware as anyone of the potential for the catastrophic effects of the spread, the unfettered spread, of COVID through New Zealand. But I also, actually, want to believe the Minister of Health when he says he’s on top of contact tracing, he’s on top of testing. And, remember, the case definition for testing for weeks was you’d have to be nearly on your deathbed with respiratory distress, a fever of 38 or higher, and a number of other sequelae before you’d even get a swab up your nose.

Now we are testing just about everybody with a sniffle—fair enough. If we’re doing that, do we really need to take these Draconian steps to prevent or avoid?

Dealing with the two main points that the Hon Michael Woodhouse raised. The first was: will there be a resolution before the election? In practice, yes. If Supplementary Order Paper 497 is adopted by the House, then clause 3(1) says that the “Act is repealed on the expiry of [the] relevant period if no resolution is passed”, and then the relevant period is defined in subclause (2) to be “the longer of the following: (a) …. 90 days [following] the commencement date or … (b) any other period specified by a resolution [in] the House”. Unless there is another resolution before then, there will be no other resolution. So you’re left with subclause (2)(a), which means it has to be done within 90 days, and 90 days from tomorrow is July-August—August isn’t it: June, July, August; 15 August—but it would expire during the interregnum. So we will, in effect, have to make sure that we’re covered during that period of the election, and, if we didn’t bring a resolution to the House before we lifted, the legislation, would risk expiring during that period. So that would be our intention to do that—to bring a resolution.

In respect of the member’s second point, referring to the purpose clause, the member’s correct in his description of the purpose as listed at clause 4(a) and (b). I would then note the purpose is further expanded at clause 4(c) to require that the public health response “is co-ordinated, orderly, and proportionate;”, and the words—“proportionate”—are important. And they are then, effectively, brought forward into the form of order that the Minister can make under section 11 orders by clause 9(1)(d). Clause 9(1)(d) says that the Minister, before making the order, “must be satisfied that the order is appropriate to achieve the purpose[s] of [the] Act.”, which includes proportionality. So if we had low levels of infection, as we do now in New Zealand, and low levels of cases, it would not be proportionate to take New Zealand back to level 4, for example, and that would be—

💬 Hon Michael Woodhouse: You wouldn’t be doing that under this Act. You’d be doing it under the Civil Defence Emergency Management Act.

No, in the future we would be doing it under this Act.

💬 Hon Michael Woodhouse: Really?

We would be. Officials can correct me if I’ve got that wrong. We would be doing it under this Act for the future.

💬 Hon Michael Woodhouse: Not a section 70 notice under the Health Act?

It would be done pursuant to this Act. It would still be a section 70 notice under the—sorry, section 11 notice instead of a section 70 notice, and it would be done under this Act. But, unlike the current power, it is actually explicitly exercised now by the Minister, and the Minister has to be satisfied that he’s achieving the purpose of the Act at clause 4, which includes proportionality.

I thank the Attorney-General for that explanation, and I would just make two points, if I may, before the gong. Firstly, I’m aware, actually, and I appreciate the Minister drawing out clause 4(c), because the obligation is required to be “co-ordinated, orderly, and proportionate;”. They are entirely appropriate words, except there is a very widespread view, one which I share, that the current proposed level 2 provisions are neither coordinated or proportionate—not coordinated, in the sense that we can have cafes and bars open but not churches. I’m going to instruct my friends at the St Patrick’s Church at Macandrew Road in Dunedin to call themselves the St Patrick’s Tavern from Sunday, and they might be able to get 99 people along to mass. I mean, they are serving bread and wine, so I’m sure they’ll meet their host responsibility under the Sale and Supply of Alcohol Act 2012.

I’m already concerned that this isn’t coordinated. I’m certainly concerned that it’s not proportionate, and those are things that are left to the discretion of the Minister to exercise his or her value judgment in respect of that, and that’s very difficult to do anything about except by resolution.

I’ll have more to say—

I’m sorry to interrupt the member. It has come time for me to leave the Chair.

Sitting suspended from 10 p.m. to 9 a.m. (Wednesday)