COVID-19 Public Health Response Bill

Tēnā rā tātou katoa i runga i te tuku iho o rātou mā ki te wāhi ngaro.

[Greetings to all. I acknowledge those who have been sent below to the spirit realm.]

Members, when the sitting was suspended last night, the committee was debating the question that Part 1 stand part. The Hon Michael Woodhouse had the call and he has three minutes 37 seconds remaining.

Mr Chairman, thank you, and I won’t be needing all of those minutes and seconds.

I raise two points and I just wanted to touch on the second one of them and seek clarification. It’s actually a segue into the start of Part 2, which is the likelihood that this bill will be used if we need to go back into level 3 or level 4. I heard the Attorney-General say that that would be the case—turning to his officials and just seeking confirmation that that would be the case. Now, there are options for the Government to use the Civil Defence Emergency Management Act and section 70 of the Health Act, but the Attorney-General made it really clear that this is going to be the Act—once it’s passed—that we would use to strengthen lockdown.

So I think we need to be very clear. In my understanding—the Attorney-General can correct me if I’m wrong—this is now the vehicle for any form of lockdown for the next two years. Any form of constraints on freedom—this is what we’re talking about. So, in terms of its purpose, it is much broader and raises the question, once again, of whether the other statutory powers that the Government had were sufficient to take us into the place that we have been in the last seven weeks.

Thank you, Mr Chairman. Yes, that’s correct. This bill, for the purposes of COVID-19 epidemics, is the governing legislation. Were there to be another epidemic that was not related to COVID, the underlying law would sit there—I think I’ve got that right. Officials are confirming that. But for COVID-19 we accept that where we need more nuanced frameworks that are potentially very intrusive, we think that should have, going forward, as we have come out of this emergency phase, a bespoke piece of legislation, and this is it. The protection that there is, that lies in that, I would suggest to the committee is greater than sits under the Health Act, for some of the reasons that have already been discussed.

💬 Hon Michael Woodhouse: We’ll get on to that in Part 2, I think.

Yes, in Part 2. While I’m on my feet I just want to raise an issue relating to Part 1, and that is the definition of “specified private premises”, and explain how this has arisen and why we’re proposing the solution that we have. Members will note that in the Supplementary Order Paper that we tabled last night, we inserted the words “specified private premises”, on page 5, and we said that specified private premises means a dwellinghouse or marae.

To make sense of that members have to look at clause 20 of the bill, which we’ll come to, which said at the time of introduction, “ subsection (1)”—this is the police powers of warrantless entry on any grounds to go into land, building, craft—“does not apply to a private dwellinghouse or marae.” There has been a concern, that the Hon Alfred Ngaro mentioned yesterday, amongst Māoridom that this is somehow paternalistic because it treats Māori premises differently to other premises. The difficulty arises from the likes of the Te Puea Marae, where marae are used for more than one purpose. Te Puea Marae has had people living there. It’s been very public with homeless people having been housed at Te Puea Marae. They also have education there. They also have other meetings, and they probably have counselling services and other commercial operations there, or semi-commerical operations, at different marae as well. It’s a point that Willie Jackson has made.

So the bill as introduced said, “Well, what do we do? We’ll treat them like a dwellinghouse.” So we said in section 20 that it should be dwellinghouse or marae. Now, the Māori Council and others have said that there’s no reason why “marae” should be inserted in deference to a non-Māori gathering place, such as a hotel, conference, or birthday party. It could be seen as unfairly targeting Māori and the places they gather. It might also infer that there’s a different standard being applied to Māoridom, and Māori don’t want that imputation to be made, which was the Hon Alfred Ngaro’s point.

So we tried to address that by dragging it into the definitions section. It’s actually something that doesn’t take away protections; it actually adds them. But none the less, Māoridom don’t want that; they want to be the same as non-Māoridom in respect of those premises. So what we’re going to do in a Supplementary Order Paper that we’ve tabled is actually take out that underlined word on page 5, so that we’re not creating a difference for Māoridom, and then take out the word “marae” from clause 20 of the bill. Then we’re left with, as you’ll see in the tracked changes version of clause 20, exactly the same for marae and other premises, but the obligation in terms of Māoridom, if they go into a marae exercising a warrantless power of going into the marae, they’ve got to give a notice to the committee of the marae.

Well, thank you very much, Mr Chair. Debating Part 1 of this bill, I’d like to first make some comments about clause 3, “Repeal of this Act”. Originally, as introduced, the bill would’ve been carte blanche for two years, and it’s very difficult to understand what the logic behind that was. It seems to be that the COVID crisis might continue for two years, and that’s how long the Government might want to use the powers afforded it in the bill. I think that possibly reveals something about the thinking behind the bill that we should be very worried about, because it seems that rather than doing what might’ve made sense, to put in place this urgently made bill only for as long as it would take for Parliament to revisit and make a proper law, it was just a matter of seeking power for the State or the Government for the period that the Government thought it might want it. I think that is, first of all, a real mistake but, second of all, betrays that throughout this crisis we’ve had an approach by the Government that is more about having the power to fight a virus than balancing all of the rights, freedoms, and objectives of New Zealanders.

As ACT, we put up amendments on Supplementary Order Paper 494 that would at least reduce the expiry date or the period of this bill back to one year from when it’s passed. I think that would’ve been an improvement. I’m really pleased to see that there has been another amendment put up by the National Party, which I have to say is even better, which requires 90-day renewals of the bill by this House. So it could actually expire on any 90-day period until two years, when it definitely expires anyway. I see the Government’s adopted those amendments in its amendments on Supplementary Order Paper 497, and I completely support those. So it’s a good improvement, but it doesn’t take away that suspicion that we got a look into the mind of the Government through its initial drafting.

We then come to clause 4, which is the purpose, and for people who may be watching this on a Wednesday morning or may not have read the whole thing or had a chance to do that—it’s all come at us very quickly—it’s worth saying: “The purpose of this Act is to support a public health response to COVID-19 that—(a) prevents and limits the risk of the outbreak … (b) avoids, mitigates, or remedies the actual … potential adverse effects … (c) is co-ordinated, orderly, and proportionate; … (d) has enforceable measures”. What’s really interesting about that is that, once again, it appears to give some insight into the psychology of the Government as it faces this crisis. Yes, COVID-19 is something that we should want to be able to mitigate. Yes, it may be that if people overwhelmingly are being cooperative, there should be, out of fairness, enforcement powers for those one or two people at the fringe that do stupid things and risk becoming a super-spreader, for example, and letting everyone else down. That’s all understandable.

But what’s interesting is that the purpose here is entirely about COVID; it’s not about balancing the rights and freedoms of New Zealanders or securing New Zealand’s overall welfare in the face of this crisis—and that seems to reflect the approach that the Government has taken throughout. What the Government could’ve said the purpose of this bill is is to balance the rights and freedoms of New Zealanders and their overall welfare, the ability to preserve their livelihood, with the Government’s effort to fight the spread of COVID-19. The only concession we see to normal rights and freedoms in the purpose clause of this bill, that clause 4, is that it needs to be proportional. Well, I understand what that means, but it’s a very weak concession to the fact that we have other objectives, not just fighting COVID-19. That is not everything. People have other things that are important and other rights and freedoms to be preserved. I hope to be able to continue that commentary with what it should’ve said in some detail in a future speech.

What that purpose clause could’ve said is that the purpose of this Act is to ensure that the Government manages the COVID crisis in a balanced way that respects the rights, freedoms, and livelihoods of New Zealanders, as well as the necessity of fighting COVID-19. Some people might say, “Well, yes, but of course the Government has to do that, and any Government would of course balance things out.” That’s not the point. This legislation is passed by Parliament to direct and constrain the Government, and what we have is a piece of legislation that says the Government can do whatever it wants so long as it is pursuing the objective of opposing COVID-19. The only concession to any kind of fairness or justice is that word “proportional”, and I’d put it to the Minister in the chair, David Parker, and to this committee that that is simply not good enough if we want to ensure a balanced approach.

I think there’s ample evidence in the way that this crisis has played out so far that we simply have not balanced all of the other objectives that New Zealanders have with the objective of fighting COVID-19. We can look at the total reluctance of the Government in earlier lockdown phases to consider, for example, the welfare of those butchers, bakers, and fresh fruit and veggie stores. The Government was quite happy to have people driving past those stores in their communities that were going broke so that they could mingle in a supermarket with 50 other people. We’ve had, as I mentioned in the first reading speech to this bill, couples where the wife was having a miscarriage left sobbing alone for hours in an empty room at a hospital. The partner, who should’ve been there supporting her, who wanted to be there supporting her, desperately, was pacing in the car park, unable, helpless, to do anything. Why? Because in the Government’s response to this crisis, there simply has not been a commitment to balancing the other objectives that New Zealanders have with the objective of fighting COVID-19.

We need an approach that says COVID is a problem, but it’s not our only problem. We want to balance it with other problems that New Zealanders face, and the purpose clause, much as with the repeal clause of this bill, seems to give an insight into the psychology of the Government that drafted it: COVID is everything to them, control is everything to them, and that is not the way to get an optimal outcome for a better response to this crisis. So I’d put it to the Minister that when he drafted this section, he should’ve drafted it in a way that said the purpose is, yes, to establish controls over COVID-19, but also to ensure that when the Government acts under the authority of this bill and this Parliament, it has to have regard to those other needs that there are. It’s only a purpose statement. You know, it only gives the underlying psychology of the legislation. There’s no reason why it couldn’t have said that.

We then get on to the interpretation section, and in particular the most interesting part—normally, interpretation sections are not sections of great interest in legislation, I have to say, but the enforcement officer definition is very interesting, because, initially, it appeared that the Government wanted anybody to be brought up as an enforcement officer. It could’ve been a so-called community group operating a checkpoint or a roadblock—no one seems to know the difference anymore. It could’ve been just about any group of New Zealanders the director-general appointed to enforce these incredible powers against their fellow citizens. I’m pleased to see the Government has clarified, and in the Supplementary Order Paper 497 that the Government’s tabled, it now has to be somebody from a Crown entity. Well, that is something of an improvement, a small improvement, but, again, the initial drafting appears to give an insight into the psychology and motivations of this Government and their approach to New Zealanders’ basic rights and freedoms.

I can’t wait to continue this Part 1 discussion, but I’ve got to get on Newstalk and tell the people how it’s going. Thank you, Mr Chair.

Thank you, Mr Chair. I’d like to speak to Supplementary Order Paper (SOP) 497—and, in particular, the amendment to clause 5(1), which deletes the definition of “specified private premises”, and it has an impact on clause 20.

This goes to what the member Alfred Ngaro said in terms of marae being targeted, Māori feeling that because the word “marae” is in the bill that they’re feeling targeted. Now, the intention was to give marae the greatest protection that we could. The confusion that is being caused is that people think that we are specifically targeting marae. So what we’ve done is listen to the concerns of Māoridom. We’ve heard from the Māori Council. We’ve spoken to a number of people in our Māori community. We’ve seen the reaction to marae being in here specifically, so what we’re doing is removing that.

But Māoridom has to be careful what they wish for—that’s the problem—because what this now does is it reduces the protections that were being afforded to marae. I want to be clear that our intention was to give marae the best protection that we possibly could. We have heard the concerns. We have listened to Māori who think that marae are being particularly targeted. We’ve made the changes and listened to what Māoridom are saying.

So, unfortunately, it reduces the protections that were to be afforded to marae. But that is what Māoridom has asked for and that’s what the SOP does by deleting the definition of “specified private premises”—and in clause 20, we’re removing reference to “marae” specifically. But, I think, to be honest, that it isn’t really what should have been done; we should have maintained the protections for marae. But, because of the confusion, this is what we’ve done. Thank you, Mr Chair.

Thank you, Mr Chair. So we’re here on Part 1 to discuss around the purpose. I’ve got some questions for the Minister David Parker. When this bill was introduced into the House earlier this sitting day, the Minister claimed, and this has been the case to public media as well, that the reason for this bill was to provide powers for enforcement of compliance under COVID-19 alert levels 1 and 2—2, in particular, given that that’s where we hope to be heading in a matter of hours. And yet it has been determined in this debate, or, in this committee stage, confirmed by the Minister and officials, that the powers in this bill are not limited to levels 1 and 2 but do provide a vehicle for compliance edicts and enforcement on any return to levels 3 or 4 as well.

So my question of the Minister is: why did he try to sell this bill to the public as being for levels 2 and possibly 1? Why, if it is about that, are the provisions not limited to COVID-19 alert levels 1 and 2? In the purpose statement, could it simply insert a clause in there to make that very clear, that this bill, and the provisions in this bill, and the particular conditions, the interpretations—that this bill applies to those specific alert levels?

How does the Minister reconcile a need for this bill for levels 3 and 4—how does he reconcile that with his own public statement that there was no enforcement gap under alert levels 3 and 4 and those health notices issued? Because if there was no enforcement gap, there is no need to nuance provisions for any potential return to level 3. His statement to the public was that what exists under the existing framework, such as the Epidemic Preparedness Act, the Civil Defence Emergency Management Act, and the powers under that—that they’re enough; that there was no gap. So why does this bill need to permit the provisions of this bill to apply to levels 3 or 4 when we’ve already got law to do that?

Because on the face of it, it looks like they just find that current law a little bit annoying and instead they want to reshape some provisions so they don’t get limited by what the limitations of that law are, and we may soon find out in court just what those limitations might be. But if they have that view, and the trifling annoyances of the law as it exists today isn’t good enough for them, then they should say so. And they didn’t. So why didn’t they? What is the justification?

Because most of these provisions are, in substance if not in exact wording, uplifted from those pieces of legislation anyway; for the elements that might nuance it, such as the Minister’s reference to marae and enforcement officers, those elements could be incorporated into the current structure by way of amendment of those Acts. They don’t need, inherently, a new Act, and they could have sunset clauses in those provisions in those amendment bills. So there is no fundamental, obvious need for this bill to apply to levels 3 and 4, particularly when the Government and that Minister said that this was all about going into level 2.

That fundamentally is important. I mean, this is about constraining civil liberties. It was told to the public it’s because there were nuances required for level 2 because, as we determined yesterday, it’s difficult to perpetuate a state of emergency under the risk profile of level 2. So yep, OK, we can understand that there is some need to be able to set compliance conditions and to enforce those, but it is not at all clear that those elements need to be able to incorporate conditions for level 3 and level 4.

So I’m particularly interested for the justification—one, the justification why this has to be level 3 and 4 encompassing as well, but also why weren’t they honest with the public? Why weren’t they upfront when they introduced this bill? Why were they not upfront and saying “Actually, this isn’t about level 1 and 2; this is about our ability to control your movements, your associations, your actions for any condition under COVID. We’re not happy with the constraints that exist on us as Government, so we want the freedom to be able to do whatever we want to do, when we want to do it, over the next two years.”?

If I could respond to Mr Hudson’s points, the powers under this COVID bill are actually narrower than the powers under the Health Act. They’re narrower, and I’ll give you an example of that—I’ll give the committee an example of that. At the moment, under the Health Act notices that have been promulgated under section 70 of the Health Act, they have triggered a warrantless power of entry for the police that they don’t even have to report on. This bill says, going forward, even if we go back to level 3 or 4 in the future, the exercise of those powers has to be reported on in a more transparent way.

In respect of the issue that the member says that I’ve misrepresented the bill about being needed in respect of level 2, it is needed in respect of level 2. The point I’ve been making in the media is to be countering what I think is quite a damaging assertion that has been made by some members of the Opposition, that we needed this bill because of a lack of powers under level 3 and level 4. We didn’t—we didn’t.

💬 Hon Member: Release your advice. Let’s see the legal advice.

He’s saying, “Release the legal advice.” Well, we’ve actually won that particular skirmish, because it’s now agreed that a select committee can’t do what the House says it can’t do, which is override legal professional privilege. But the idea that not releasing legal advice means that the legal advice says there’s something bad in there is just wrong and unprincipled, and the member knows that, because he’s legally experienced.

In respect of the issue as to why it is that you would want to use this new regime in respect of future level 3 or level 4 events, if perchance we have to go there—and we all hope we don’t have to go back there—it actually goes to the point that Mr Seymour made. The new framework actually creates more accountability, because it’s a ministerial decision rather than the Director-General of Health.

The further point that David Seymour made in relation to the definitions was saying that the purpose should be more than public health; it should be about economic factors. Well, actually, this is, effectively, a bespoke response to a health issue and, effectively, replaces the Health Act processes for COVID-19. I would say: in the future, the House will go back to those things more widely and actually propose more widely, in respect of the Health Act, a ministerial decision-making framework rather than a Director-General of Health decision-making framework, but that’s for the future. But with respect to David Seymour, whose contributions in this debate I have thought have been very good, as have other members’—

💬 Hon Member: Because he’s voting for the bill.

I suspect he’s not, actually. That was a very cynical interjection there from the other side. People can make valuable contributions, even if they’re voting in an opposite way, to improve the bill before it’s eventually passed. But he said that the purpose clause should include reference to economic factors. I agree that the decision that the Government takes as COVID goes forward—because it’s a very unusual and long-lasting epidemic—needs to take into account economic factors in addition to health factors, and that is achieved in this bill by clause 9(b). It is achieved as David Seymour wanted economic factors to be taken into account in the decision that the Minister makes. That isn’t achieved through the purpose clause, clause 4; it’s the interrelationship between that clause 4 and clause 9(b) of the bill which makes that express point, but we come to that in Part 2.

Thank you, Mr Chair. Well, in response then to the Minister’s comments—his comment first of all that this bill is a narrower set of powers—he gave the example of the requirement to report on a warrantless entry. Well, quite frankly, that’s a good safeguard; that’s actually a really good idea. But back to my earlier point: why not make that an amendment into the Health Act, or into the Civil Defence Emergency Management Act for that matter, too? And it could also be limited particularly to a health epidemic or, indeed, to COVID-19 and it could even have a sunset clause. But if it is important, and, actually, I think it is important, the Government would have been better-off making that amendment in the existing Acts; not creating an entirely new framework.

So, another set of questions for the Minister, given he claims that this is a reduced set of powers. It’s pretty simple: for New Zealanders, what lockdown meant is the Government could tell them what to do. The Government, effectively, told them to stay at home. It told them the conditions under which they could leave their homes, whether it was to access an essential service such as a supermarket, to go to the pharmacy, or to go and get some exercise—and the Government placed constraints on what that exercise could be, where it could be, how far they could travel by vehicle for the purpose of exercise. The Government determined what businesses could open, not even, actually, under a framework of principle-base but, actually, the Government decided individually which business could open and which business could not. The Government was able, effectively, to lock down the country in level 3 and 4 that we’ve experienced, and the provisions in this bill enable them to do the same things. There is the ability under this bill, if it is enacted, to place the same level of constraints on people’s freedom of movement, their freedom of association—the Government can lock them up in their homes under the provisions of this bill, should it choose to.

What is more, it’s actually worse—the powers are greater—because, while the Government may have to give regard to advice from the Director-General of Health, it does not have to follow it, whereas—and I’m going to slightly impinge into Part 2, just by reference—under the existing legislation, it is the Director-General of Health that makes those decisions, not the Government. So, actually, they’re giving themselves more power and taking the power away—or lessening the power—of the apolitical and unelected officials who New Zealanders can have the trust in to make decisions without a political tinge. Rather than, as the Minister has said, making it more accountable, this simply makes it more political.

But to that point which the Minister made about these somehow being more constrained powers, they simply are not—not to the everyday effect of New Zealanders that they have felt for the last six or seven weeks. The Government, if this bill is enacted, can do all of the things it did to New Zealanders over that period under this bill, and it allows them to do it outside of the existing legal frameworks, which do provide limitations on the power of Government and, what is more, require the decisions to be made without a political tinge. So I find it quite astounding that the Minister, who must know these things, would seek to make such a claim in this House. This is a truly serious matter. This is not about limiting Government response; this is about empowering any politically founded response that they may choose to do so.

Also, because, of course, these provisions, or these powers, can be unlocked at the whim of a Prime Minister who just decides that they will move into a state which allows these, further protections for New Zealanders from political meddling are actually removed, because she or he could choose to do so counter to advice from officials, including the Director-General of Health. This is not a bill that is securing the civil liberties of New Zealanders; it is completely undermining them in a way that lessens the safeguards and constraints that the existing framework places.

I do agree with the Minister that there are gaps in the current frameworks for what we see as level 2 and possibly even level 1, but I don’t believe he has justified why an entirely new framework and law is required.

That’s a very good point made by my colleague, because we’re being asked to pass this legislation because there is going to be no pandemic notice, there is going to be no state of civil emergency. So that raises the question: what is the basis for the fear that the Government has to the extent that they need to pass legislation that is going to seriously continue impinging on the civil liberties of New Zealanders? I don’t want to be here saying that we shouldn’t take any precautions, or that we shouldn’t be sensible, or that we shouldn’t watch the opportunities that we have to prevent the spread of this particular disease. But it appears that there is no trust that New Zealanders in the main can be sensible, because let’s be very clear, the New Zealanders who broke the rules during 4 and 3 will continue to break the rules under 2, regardless of any law that might be there. So why do we then need to impose such incredible restrictions on New Zealanders?

My colleague made the right point. Mr Hudson made it clear that it’s the Prime Minister under this bill who calls all the shots. Why isn’t there some kind of protection for the public in there needing to be some stream of demonstrable advice about why a particular measure is being taken? I’d like the Minister to address that, particularly the issue of no pandemic notice, no state of civil emergency. But somehow something driving a degree of fear in the Government that New Zealanders would not act sensibly, having so willingly, voluntarily—because it would appear there wasn’t any legal compulsion—interrupted their lives so dramatically as they have in the last seven weeks to get on top of this thing.

I’m happy to respond to some of those matters. Can I suggest that the Opposition can’t have it both ways. Well, they shouldn’t have it both ways. They can try, but they shouldn’t. They can’t say, on the one hand, economic matters need to be taken into account going forward because this is an unusual thing and we need to open up the economy and we can’t just do this only on health grounds, which is, essentially, what the director-general’s orders do now under the Health Act. To get past that, you need this legislation, which enables the Government because it’s now the Minister that takes those decisions, and the Minister can now expressly take into account economic factors as well as having to take into account the director-general’s public health advice. That’s the effect of this new legislation, which is different from the other.

The other additional protections here are that, for the orders that are now made under this legislation, there has to be a confirmation process under this House. There’s no such confirmation process under the existing Health Act. So that’s an additional protection that is there for New Zealanders, that we bring these things back to the House for every order—an additional protection that we’ve agreed through this process. Similar ideas were brought by both ACT and the National Party, which we agreed with. We thought these were improvements to the legislation, that rather than this having a two-year sunset we should have to come back every 90 days generally for confirmation that this bill, in respect of COVID itself, is carried forward.

As to the point of Mr Brownlee’s that we should trust everyone—actually, you know, New Zealanders, the 99 percent New Zealanders who do the right thing, don’t want their efforts to be put at risk by the 1 percent who refuse to and deliberately flout rules. And we saw that on the way in at level 3 in New Zealand. We saw it in my hometown of Dunedin, where people deliberately—student parties started up on private property that were really deliberately flouting it. Now, that might have been ignorance as we went in, but we have seen that sort of irresponsible conduct on the part of a very, very small minority of New Zealanders. The law does need to be able to say that’s not right and to enforce the rules that are necessary to stop the spread of COVID.

The final point I will make is that I actually agree that this is a very unusual disease. At the moment it appears that it’s not changing and morphing so fast that it will for ever stay ahead of a vaccine, because if this virus turns into something that mutates all the time, there is a view that you will never get to a vaccine. Currently, it looks like it’s not mutating that fast. And therefore, if we manage to maintain low levels of infection in New Zealand, we should be able to do that, we hope, until a vaccine comes along. If the virus started to mutate regularly and, therefore, there was no prospect of a vaccine, eventually society has to deal with it in a different way. And perhaps at that time it would be appropriate to say, “Look, there’s no hope of keeping this out for ever. The interim powers of allowing police officers to go in without a warrant to stop a big party at a private residence should be revisited because there’s no sense in doing it, because we can’t do this for ever.” But we’re not at that point yet.

We have so successfully as a country got this under control that we have a good chance that New Zealand is not going to suffer the appalling consequences that we’ve see in Italy, in Great Britain, in the United States, where thousands of people are dying and people who have got other health problems that are serious can’t get treatment because their hospital systems are overrun by COVID. We have stopped that in New Zealand and we’ve got the chance of—now, I’m going to finally, before I take my seat, refer to the point that David Seymour raised of that terribly sad case of a woman suffering a miscarriage and her partner not being able to join her in hospital. Why did the health authorities do that? Because they wanted to halve the rate of risk that they were, through that admission, admitting COVID to their hospital. We’ve got hospitals around the world—around the world, you see it in India, you see it in Great Britain—where we have got infection rife.

With all due respect to the very emotional—unusually emotional—speech from the Hon David Parker, it was really a bit like pointing at a tree and saying, “Look at that; there’s a squirrel running up there.” Well, over here there’s a really serious issue. That serious issue is that there is no basis under the law at the moment for the director-general to declare a pandemic. There’s no basis under law at the moment for there to be a state of civil emergency to be declared. So if, in fact, the efforts of New Zealanders—which have been pretty splendid, I’ve got to say—have got us to this point, what’s the fear factor that says that we now can’t trust New Zealanders to do the right things moving forward?

Let’s be very clear. Those people that you cite, Minister—in the flat parties in Dunedin and various other things—are going to continue doing that sort of thing anyway. They’re nutters; they don’t listen and they don’t care. So to say, “Well, we’ve got to protect the population against the worst health effects that may come from that irresponsible behaviour.” tends to deny the fact that it is irresponsible to see so many New Zealanders day after day—1,000 a day, and probably more. It won’t be long before the daily toll of people going on to the jobseeker benefit, losing their jobs, unemployed, matches the entire number of people who’ve been infected by COVID virus over the last seven weeks.

So all we’re saying is this goes too far. It puts far too much power in the hands of one person: the Prime Minister. There are no—there are no—controls in this or suggestions in this or, you would say, references in this as to what advice the Prime Minister should take. Now, everyone knows Prime Ministers take advice. Everyone knows, also, Prime Ministers can make decisions that their whole caucus will go along with. But to legislate in here for that particular power, I think, is somewhat over the top.

I take a short call in response to a couple of comments from the Attorney-General, David Parker. I apologise, I missed part of his comment, but what I got from him was that it was not necessary to set out in any explicit terms the need to balance the other concerns New Zealanders have such as their rights and freedoms—

💬 Hon David Parker: That’s not what I said.

—and their welfare in the purpose. He’s now saying to me that’s not what he said, but he seemed to be saying that because clause 9(b)—and that’s in Part 2 and we’re not currently debating Part 2—but because clause 9(b) has a reference where it says the Minister must have regard to any decision by the Government on the level of public health measures appropriate to respond to the risks or remedy the effects and then in brackets, “(which decision may have taken into account any social, economic, or other factors)”. So I take the Minister’s point that the bill does include the concern for other factors: people’s rights and freedoms; their right to protect their livelihood, do their business, and so on. However, I just make the point that when pushed to refer to that, the Attorney-General has referred us to something in clause 9(b) that’s actually in brackets and I don’t think that is an adequate prominence for the fact that the Government needs to be balancing a range of competing objectives when it puts in place these orders. I just come back—I don’t think those are particularly helpful, but it’s worth mentioning since the Attorney-General’s picked it up.

The logic of separating couples going into hospital for childbirth is that actually they had their bubble divided. If anything, they were put at greater risk. The idea that an intimate couple who are having a baby wouldn’t have already infected each other if one or the other had it does not seem logical to me. It’s more likely that they’re going to infect each other if one of them is forced to go outside and pace around the carpark and take a different route through the hospital from the other. And, of course, that the illogic of those orders compounds when you consider that actually in most cases, such as Dr David Cumin, who happens to be a personal friend of mine and a lecturer at the University of Auckland, a fine proponent of civil liberties in this country—well, he was also separated from his partner in the course of childbirth. But the crazy thing is he went into the hospital, then he came out, so the bubble was together then divided. The hospital actually increased the chance of spreading COVID, including into the hospital. I don’t think there’s a lot of point debating this, because it’s not entirely relevant to the bill, but it does speak to the need to consider very carefully the impacts of this legislation, not only on COVID-19 but on the other rights and freedoms that people cherish in this country.

We also come on to the later sections and I don’t think there’s a huge amount that needs to be said about that, other than this question around specified private premises. Now, I can understand the obvious sensitivity of differentiating marae from the rest of the private dwellings that New Zealanders have. We don’t like the idea that there are two legal regimes—that one race are singled out—obviously, and I think it’s important that the Government is trying to address that issue. But so far as I can see, and perhaps the Attorney-General can tell us, specified private premises still names a dwelling a private dwellinghouse or marae, so I don’t know what the objective is anymore. Are we trying to say that marae and Māori are different or the same when we distinguish marae from private dwellinghouses in the interpretation?

So lots to debate—and I think it shows, having this debate, how important it is that New Zealand’s laws are actually debated in a Parliament. And for that, I really thank the Attorney-General for bringing this bill to the House and now to committee. Thank you, Mr Chair.

The issues that come up in Part 2, I’ll leave for Part 2. The issue in respect of the definition of “a private dwelling” in this Part 1, what I said earlier, and I’m not sure whether the member had the opportunity to hear it, was that proposed addition to the definitions of “specified private premises means a private dwellinghouse or marae” is coming out. We’re reverting, then, to the original wording in the bill in clause 20, but when we get to that we are taking out the words “or marae” so that we don’t have that distinction.

I just stand to take a call on this Part 1. We heard in this House, the Prime Minister declare the reasons for the speed of this process. It was not only because of the pandemic but that in order to mitigate that speed of the process, we had the opportunity to have an exposure draft sent out to those of concern, those who would make a contribution.

In regards to this bill, I want to ask a number of questions to the Attorney-General. In particular, he’s made comments in regards to marae being taken out. But I want to ask him the first question: when did he receive the advice that was given from the exposure draft given to Māori? I’ve got a list of a number of Māori academics and those who are quite prominent in Māoridom but also in the judicial system, both in academic and in practice, who gave some advice. I’d like to know from the Minister: when did he receive that advice? And when he did receive that advice, how did he accommodate for the advice that was given by Māoridom, in this particular instance, to the issues of concern that were raised?

The Minister has stood in the House—and I acknowledge the fact of the changes that have been made through the Supplementary Order Paper (SOP). I acknowledge the fact that the Hon Kelvin Davis had explained the reason for this, that there had been others. The Attorney-General talked about Willie Jackson. There were others in the Māori Council who talked about this. And then he gave a definition, an interpretation, as the reasons it was taken out. But I want to remind the Minister, because I’m sure that he has read the advice that was given to him, which was given quite early on, by the way, to those—earlier than we received it. We received it around about half past 5 on a Monday afternoon. So this consultation process I think should be challenged.

But here’s some of the advice that was given by those to the Attorney-General, I’m sure, and to the Government. Their first statement was this: “There is neither a general Treaty clause nor any obligation to have regard to the Treaty or its principles at any point of decision making or performance of functions under the Act.” That’s exactly the point. While I acknowledge the changes that have been made through the SOP, the point is that when you have a reference point, you can then determine the decisions so that you don’t make the mistakes to try and change them or to try and define whether you need further consultation with others around. Why? Because you’re guided by the determination of the principles that are here.

Can I remind us in the committee, not just the Attorney-General, that the Treaty of Waitangi is based on the principle of a word called kawenata. Not just partnership, kawenata is about a covenant, and here’s what it clearly states and here’s the reasons why I think that’s important: because a covenant, in the meaning of kawenata, is a covenant, a testament, a charter, a contract. It’s an undertaking that binds parties to a permanent moral and irrevocable relationship. That’s the reasons why we have it, and at the heart of a bill that’s coming before this House. Again, we don’t challenge the what—we know what needs to happen—we’re challenging the why. What I’m challenging here today is this: that at the heart of this relationship which is a foundation of this nation, of two peoples that are reflected in the covenant relationship, why was it not taken into account? You can change the deck chairs, you can change the SOPs to accommodate, to make it look like it appeases people, but at the heart of it you’ve forgotten the principles that are critically important.

I say this to the committee. I say this to the history and the heritage of this place, because we’re all accountable. But I’m now saying to you that is in charge, to you that is in a position where you are in charge of this bill, that if you cannot uphold a covenant relationship between Māoridom—and I say this to you and to the nation of New Zealand—then you’re not upholding a relationship of trust with the people of New Zealand, because that’s what it goes to the heart of. If you cannot understand the key principles of what that means—sorry, Mr Chair; I didn’t want to bring you into the debate, but to the Government of the day: if you cannot take into account the advice that was given in the exposure draft that the Prime Minister stood in this House and said was critically important because of the speed of the process, we wanted to acknowledge and to engage, and yet they have been forgotten like the funeral directors, like those in the churches, like those in other places around the country.

The nation is waking up to see that under this Government, it’s not the what that people are arguing; it’s the how you are going about it. You are giving extraordinary powers. You’re going to the point where the goodwill that has been given by this nation to the governance of this country to lead us to a place of safety and wellbeing is now being trashed and taken away.

I want to just finish off my comments there, but I want to say to the Minister that the question is: when did he receive those comments? How did he accommodate the views that were stated—and there were a number of them—in this report that I have before me? How did he accommodate them, or was it just a casual conversation? You mentioned about Willie Jackson—can I also say that when you use the definition and your interpretation of “marae”, that they had dual roles not only as places of cultural significance but also as social services, well, I’d like to say the same thing too. That goes the same for churches. The number of churches that are now having a dual role of not only places of worship but also places of serving their community through the outreach of social services is right up and down this country, so they are no different at the same time too. So I don’t buy the excuse or the reasons that were given that those maraes have a dual role.

I’d like the Minister to answer those questions. I’d like him to take in consideration that was given to him in the exposure draft that was submitted and, again, to answer the question: why is it that those views and those comments were not taken into consideration and all we’re doing now is just trying to tidy up? It’s just like we got the rubber; we’re going to rub it out. We’re going to change it, put it in an SOP, Part 2, make it look like it accommodates and appeases the people. This is not just for Māoridom; this is for all New Zealanders, who are starting to wake up that their civil liberties and their civil rights—the goodwill is about to run out, and when it does you’ll see a backlash of people starting to say enough is enough.

The question was put that the following amendment in the name of the Hon David Parker to the proposed amendments set out on Supplementary Order Paper 497 in his name to clause 5 be agreed to:

delete the definition of specified private premises.

The question is that the Minister’s amendments to Part 1 set out on Supplementary Order Paper 497 be agreed to. All those in favour say Aye, to the contrary No—

💬 Hon Gerry Brownlee: I raise a point of order, Mr Chairperson. I know it’s unusual for me to even seek this when you have started the vote, but this is a very important bill, and I think it would be useful, rather than just hearing the numbers, if on this particular occasion we could hear what the amendments are, because some of them quite clearly will make the bill better, and regardless of our view on the bill, then we would want to support those bits of the bill that make it better. I know that’s unusual, so can I seek leave for that to happen?

CHAIRPERSON (Adrian Rurawhe): Can I just take some advice on that.

💬 Hon Gerry Brownlee: Yeah, yeah, most certainly, sir—sorry.

💬 Hon David Parker: Could I speak to the point of order? This is an unusual situation. I understand what the shadow Leader of the House is seeking, and I think that the intention of the Opposition was to support the bill coming back every 90 days to Parliament, or the powers coming back every 90 days. My understanding of the vote that has just been taken is that, actually, the National Party voted the reverse on Supplementary Order Paper 497, so I would seek leave that the vote be put again.

💬 Hon Gerry Brownlee: Well, in any event, there is a facility available. The Clerk might want to advise you, sir, but my understanding is that a vote can be corrected, and in that case, then I would take this opportunity to ask, before you declare the final result, that our vote for that particular provision is in favour.

CHAIRPERSON (Adrian Rurawhe): The vote that has taken place is on the definition of “specified private premises”. So the National Party voted No. If the member is telling—

💬 Hon Gerry Brownlee: But that was on the premises stuff?

💬 Hon David Parker: I raise a point of order, Mr Chairperson. For clarity, the point that Alfred Ngaro raised, which was in respect of marae, is in the first Supplementary Order Paper (SOP), and if the National Party wanted all premises to be treated the same, including marae, they would vote in favour of that SOP.

💬 Hon Gerry Brownlee: And that’s the correction of the vote.

CHAIRPERSON (Adrian Rurawhe): OK. Well, I think we’ve had the leave sought that we have that vote again, and I’m inclined to put that leave and expect that we’ll take that vote again. So leave has been sought that the vote on amending the Minister’s Supplementary Order Paper (SOP) 497—an amendment to clause 5—be retaken. There’s no objection, so that will be the case.

The question was put that the following amendment in the name of the Hon David Parker to the proposed amendments set out on Supplementary Order Paper 497 in his name to clause 5 be agreed to:

delete the definition of specified private premises.

Amendment to the amendments agreed to.

The question was put that the amendments set out on Supplementary Order Paper 497 in the name of the Hon David Parker to Part 1 be agreed to.

Amendments agreed to.

David Seymour’s amendment to clause 3 set out on Supplementary Order Paper (SOP) 494 is out of order as being inconsistent with a previous decision of the committee. The Hon Simon Bridges’ amendments to clause 3 set out on SOP 499 are out of order as being inconsistent with a previous decision of the committee.