COVID-19 Public Health Response Bill

This is the part that has the powers that can be specified in a clause 11 order, which is the equivalent of the old section 70 orders under the Health Act. I make the point that all of the powers that are listed there have broader equivalence under the Health Act. So why this is, we think, desirable is that this makes it clear that you can have narrower versions of those powers—for example, rather than closing premises, it’s made express that premises can be conditionally open so that rather than them being closed, they are open albeit with rules relating to maximum numbers and social distancing.

Thank you, Mr Chairman. This is the first opportunity that I have had to speak in this House since the COVID-19 emergency, and it is with a great deal of unease, specifically on the provisions that are in this COVID-19 Public Health Response Bill, Part 2. My unease is that, at the time when the Government is calling for unity and for anybody that questions provisions of its programme is somehow being disloyal to the cause of this country confronting the challenges of COVID-19, we have the Government exercising extraordinary powers over people’s lives, and we have quite arbitrary decisions being made on the exercise of freedoms that I never thought would ever be questioned in this Parliament. My nervousness is this: only two weeks ago, this Parliament under urgency passed legislation very different to what the Minister told the House it was doing. We passed a massive finance bill, spending billions of dollars, that was completely different to what the Minister said. And that is why it is proper that this Parliament scrutinises this legislation.

The bit that I am at loss, and my community in Nelson is at loss, is in respect of the provisions in Part 2 of this bill as they relate to gatherings of people. Nobody in this Parliament would question the emotion of funerals and the way in which people are able to farewell loved ones. I have a letter, which I’ll table, from my local funeral association that says, “How do we explain to Nelsonians and to New Zealanders that you can have 100 people in a bar, you can have 100 people in a restaurant, but you can’t have more than 10 people under level 2 at a funeral? You can have 50 people on a school bus, but you can’t have more than 10 at a funeral.” When I hear the Prime Minister say to New Zealanders, “Oh, you’ve got to be united. It’s unfair to question these arbitrary rulings.” I say to the Minister, actually, in a democracy, it is absolutely proper that we can ask questions of regulations and proposals that lack common sense, that lack compassion, and which do not respect basic things like religious freedom. I’d love the Minister to explain this for me. In a bar—myself and others, I enjoy a good beer at my local. Actually, I see far more capacity to be able to do contact tracing and to be able to manage social distancing at a place of worship as compared with a bar. So can the members in the Government please explain for me why my churches in Nelson will not, under level 2, be able to practise worship with the proper controls, but those same groups will be able to hop down to the local bar with 100 people and have an ale? I’m sorry; it does not make common sense. It’s insulting to the intelligence of New Zealanders, and, actually, it’s insulting to one of the most basic freedoms in this dear country of ours, and that is the issue of religious freedom.

Here’s my further point for the Minister: what this bill says is the Opposition is right—that under level 1 and level 2, the Government was acting unlawfully.

💬 Hon Andrew Little: No, it doesn’t.

We should have seen legislation of this sort four weeks ago, Mr Little. My question for Mr Little, the Minister of Justice, is this: six weeks ago, the Government announced a framework—

💬 Hon Andrew Little: How would you believe him?

I raise a point of order, Madam Chairperson. I’ve put up with continuous interjection from the Minister of Justice, Mr Andrew Little. I’d invite him to take a call on such a serious issue rather than the continuous practice of interjection when we’re talking about issues as important as the rights of New Zealanders, an issue of which he has responsibility for.

CHAIRPERSON (Hon Anne Tolley): I don’t need any help, but that’s not actually a point of order, and this is a wide-ranging debate and interjection—I will decide when it’s unreasonable. The member may continue.

So transparency and openness is absolutely critical to our country being united in dealing with the issues of COVID-19. My question for the Minister of Justice is this: the Government announced, six weeks ago, the level 1, 2, 3, 4 process for dealing with COVID-19; why is Parliament only being given 24 hours to debate the law that provides the extraordinary powers that the Government announced six weeks ago? What sort of respect does it show Parliament and New Zealand’s democracy that the Government develops a level system—1, 2, 3, 4—and turns up with the legislation one day before it comes into effect? Is that really good lawmaking, Mr Parker? Why is it that Parliament has not been able to have a look at this sort of law rather than, effectively, being given 24 hours? What is it in the culture and the arrogance of this Government that it can have six weeks with its officials around such issues of what people will be able to do and not do under level 2, but Parliament is to be given less than a day to approve such far-reaching law changes?

Now, I do challenge the Minister that if you want to keep New Zealand united, if you want to keep our response as a country to this challenge, then you also need to meet the transparency test. I say, what good reason does the Government have for not releasing the Crown Law opinion on the application of level 4 controls?

CHAIRPERSON (Hon Anne Tolley): That’s a good question to ask, but it’s not actually in this part.

Well, it’s absolutely relevant to the issues in Part 2.

CHAIRPERSON (Hon Anne Tolley): Well, yeah, but we are actually debating Part 2, so I’d ask you—

Well, it’s relevant to the issues of Part 2, because I put this to you, Madam Chair—

CHAIRPERSON (Hon Anne Tolley): Are you arguing with me?

No, I’m not arguing. I’m saying that the issue of the Crown Law advice on the legality of level 4 controls—

CHAIRPERSON (Hon Anne Tolley): Related to which part?

—is absolutely relevant to the issues in Part 2 of this bill, because it’s attempting to codify the very things that the Government has done under levels 3 and 4. So my question for the Minister is this: why, if it was perfectly legal to exercise controls that were far more powerful, far more restrictive, under level 4, do we need to legislate in Part 2 of this bill for the controls under level 2? Because, in effect, what the Government is saying is: “Oops, we overstretched on level 4. The legislation to enforce what we did under level 4 should’ve been provided then, but now, as sort of a backfill measure, with a lower level of restrictions, we now recognise that we have to legislate.” Again, I say, if you want the sort of goodwill for New Zealanders to back a collective effort, 5 million New Zealanders, then what we ask of the Government is openness and transparency, and we have not seen that.

The last point I would want to make in respect to Part 2 of this bill is why exclude the largest party in Parliament, the party which received the most votes and has the greatest democratic mandate from the last election, from any say in the extraordinary regulations that you’re asking for in clause 11 of this Part 2? Why should the over a million New Zealanders that voted for the 55 members of the National Party not have any role or say in the regulations? We’ve moved an amendment that says that the Prime Minister should consult with the Leader of the Opposition if they are going to proceed with the powers, because what this bill does is transfer extraordinary powers from the Parliament to the executive—to the Government of the day. The Government of the day represents three parties—the Labour, the New Zealand First, and the Green Party—but excludes any involvement of the party that actually holds the majority of the constituency seats and secured the most votes at the last election.

So, again, I say to the Government that if you want unity, if you want New Zealand to hold it together and to be able to deal with the challenges of COVID-19, then the quid pro quo is that you respect democracy, respect this Parliament, and have, at the very least, a requirement for the Prime Minister to consult with the Leader of the Opposition about the sorts of regulations that would be passed to put these extraordinary limits on where people can worship, whether they can leave their home, whether they can open their business—whether they can do those such things.

Responding to some of the points that the Hon Dr Smith has made—or is it Dr the Hon Smith? According to the Lockwood Smith precedent—

CHAIRPERSON (Hon Anne Tolley): It’s the “Honourable Doctor”.

The Hon Dr Smith. This legislation sets up the framework; it doesn’t make the orders. Therefore, this framework has to contemplate future orders, including, we say, in respect of what we should do in the future, should we have to go back to level 3 or 4 in a more nuanced way than we actually did as we went through those levels today. Therefore, it is not this legislation that sets what the size of a gathering should be, what the difference should be in a funeral, or a wedding, or a tangi, or a private party; that is for the orders that are made under it.

They are very proper questions for the Opposition to ask, and it is proper for the Opposition to question those, but that isn’t what this legislation is doing; this is legislation that sets up the framework that has to cover various exigencies that may arise in the future. In respect of the assertion that is made by Dr Smith that this somehow means that the powers that were exercised under the earlier orders—that’s not logically connected and that’s not correct. In respect of the issue—

💬 Hon Dr Nick Smith: Well, release the opinion—release it.

Well, there we go again. We have the Opposition having quite improperly attacked the basis of legal professional privilege, saying the reason that we’re asserting our legal professional privilege is because we’ve got something to hide in respect of those enforcement powers. It just shows you how populist and desperate they have become that they link those two arguments, because they actually know—I would suggest to the public—that they’re wrong in principle. In respect of the issue as to whether the Leader of the Opposition should be included in these things, I would suggest to you that it is the executive that is held to account for governmental action, and that is the traditional form of accountability that we are restoring through this bill, meaning that it is the Minister that has to take into account, under Part 2, the advice from the director-general, can take into account economic factors as a consequence.

We offered the Leader of the Opposition a confidential briefing on the legal advice that they so desperately wanted to see, but he didn’t want to see it on that confidential basis. We’re quite happy with the ability of the Government to take these decisions wisely and to be held to account by the Opposition, including in respect of orders that are made under this legislation. Indeed, we think that is the appropriate way for our parliamentary democracy to operate, including the ability of the Opposition to hold us to account through discussions in this Parliament at question time, through the 90-day review of this legislation, whether it’s been appropriately dealt with by the Government. But we don’t think it’s appropriate that the Leader of the Opposition have the role that is sought by the Opposition in their Supplementary Order Paper, and so we’ll be voting against that particular Supplementary Order Paper.

Well, there we have it from the Minister. This part is totally the “Henry VIII” provision—no consultation required by the Prime Minister, just wake up in the morning, bit of a whim, and we’ll shut a few things down. Now, that might be a massive oversimplification, but it is the reality of the power that’s contained in this particular provision. If it is—well, I see one member over there laughing, but I know what that member’s electoral fortunes are going to be in a few months’ time, as a result of that sort of laughter.

Let me be very clear—let me be very clear. This bill confers an enormous amount of power on one person, effectively the Prime Minister. Everybody else is a step down from that, and everybody else loops back to the Prime Minister. Now, Prime Ministers do eventually have to make calls; no one is going to dispute that. But there is normally a process that’s much more defined than we’ve got in this case. There’s no need for the Prime Minister to consult with anybody. But what would be so hard with actually saying, “The circumstances in the country, from a health perspective, are so dire, we now need to introduce even more stringent measures.” Because that’s really what this is about.

Yes, it does make legal what this level 2 arrangement is about, but it will circle back on level 3 or level 4 if that’s required. So what is so hard in that circumstance to consult with the Leader of the Opposition? What is so hard about that? Doesn’t mean the Prime Minister has to do what the Leader of the Opposition tells her or him, whoever it might be; it simply means that the Opposition is informed.

Now, there could be some reasonable discussion about what eventually goes into the section 11 notices that are part of this part. Section 11 notices can be incredibly Draconian. We’re seeing what has happened to small businesses. You know, people driving past the butcher, the baker, and various other small businesses to go to the supermarket, apparently to stay safe, but by congregating in a place where everybody is touching everything, and, bluntly, the ability for people to maintain social distance was difficult. But that can happen again: preference, effectively, for one delivery service over another.

If there is a view—and it’s just stated here—that there could be the spread of the virus or there could be an exacerbation to the pandemic level, then in that event, why not consult with the other side of the House? No one’s going to do or recommend anything that said that’s crazy or anti or not going to be in the best interests of New Zealanders. But I do think this is far too restrictive in its conference of power, effectively, to make these decisions on one person. So I’d like to ask the Minister to just run through again what he thinks the process would be when the Prime Minister reaches a conclusion that there is a risk of an outbreak or the spread of COVID-19 and has decided to authorise the use of section 11 notices. Because it looks light—it looks light.

The interesting thing is that one of the things that can be done is that once the Prime Minister makes that decision by Gazette notice, it’s the Minister of Health who steps in to do these things, and that Minister may have regard to any decision by the Government on how to respond. In other words, it is proof positive, written in the law, it all goes back to the Prime Minister. I think that’s dangerous in a free country.

We have a Westminster democracy. It does work; it means we have to go through processes. Everyone doesn’t get what they want. But a Government that’s duly installed is able to pass laws as long as they can keep their own people onside or their coalitions onside. That’s how it works. But they do have to go through a process, except in this case. To say, “Well, look, we’ve now agreed that there’s a three-month review.” Well, that’s good; it’s great there’s a three-month review. All that will do is notify the public about why things are continuing, in a formal sense. No one should be under any illusion that there will be some kind of free vote in the House.

I want to respond to the question, or the assertion, of the Hon Gerry Brownlee—and I wrote it down. He said, “Nobody’s going to do what is not in the interests of New Zealand.”, as to why we should consult with the Leader of the Opposition.

I’m going to put on record what’s just been happening in the last week. The Leader of the Opposition, having been offered a confidential brief of legal—

💬 Hon Gerry Brownlee: You tried to gag him.

💬 Hon Member: Gagging order.

💬 Hon Member: It’s called legal privilege.

CHAIRPERSON (Hon Anne Tolley): Order! Order! Order! All of you.

Thank you, Madam Speaker. The Leader of the Opposition, having been offered a confidential look at the legal advice he seemed so desperate to see, said he didn’t want to receive it because he wanted to make it public. He is a lawyer. He knows that legal professional privilege does not exist on that basis.

💬 Hon Dr Nick Smith: It can be waivered at any time.

Yes, it can be waived, but it’s not for the Opposition to waive it; it is for the Attorney-General to waive it. It is an over 100-year-old precedent of this Parliament, entrenched in the legislation of this House, that it is not even for Parliament to waive that privilege. The Leader of the Opposition then purported to issue a summons to require that privilege to be waived, and said that he would override it.

It is for the Government to make these decisions, and we will. We will be held to account for the decisions that we will make, but they are governmental decisions. We are introducing further scrutiny through the provisions in this bill, but we are not going to devolve those decision-making responsibilities to the Opposition.

I will call the Hon Gerry Brownlee, but I just make the point that, actually, this bill in front of us here does not contain anything about releasing documents, whether they’re legally privileged—so let’s make sure that we are focused on the clauses in the bill.

💬 Hon Gerry Brownlee: Look, the clock hasn’t gone back to zero, so I’ll take a point of order.

CHAIRPERSON (Hon Anne Tolley): That’s because I haven’t done it.

💬 Hon Gerry Brownlee: My point of order is that—

CHAIRPERSON (Hon Anne Tolley): Oh, it’s a point of order?

💬 Hon Gerry Brownlee: Yes.

CHAIRPERSON (Hon Anne Tolley): Oh, I beg your pardon.

💬 Hon Gerry Brownlee: No, no, hang on, oh, was that—oh, yeah, that’s right. My—

CHAIRPERSON (Hon Anne Tolley): The Minister was on his feet, yeah.

💬 Hon Gerry Brownlee: Yeah, my point is—

CHAIRPERSON (Hon Anne Tolley): You’re taking a point of order.

💬 Hon Gerry Brownlee: Yes, just to make it clear with you, so I don’t stray into the wrong sort of territory, that the issue is about the consultation with the Leader of the Opposition. The Minister has said the reason for them not wanting to put it in the bill—

CHAIRPERSON (Hon Anne Tolley): I understand that.

💬 Hon Gerry Brownlee: —relates to the release of documents. It’s impossible not to mention the release of documents in some rebuttal of his position. So, with that, can I make my start?

💬 Hon David Parker: Speaking to the point of order.

CHAIRPERSON (Hon Anne Tolley): Well, I’m not actually quite sure what the point of order is, because this is a debatable point. All I did was make sure that we were directing the conversation in this committee towards the provisions in the bill. So I don’t really think there’s a point of order, and I’m happy to continue with the discussion.

So there the Minister goes again, pointing at another tree to show us another squirrel: “Look at that; it’s running up over there. Forget about what’s over here.” All we have said is, when these provisions are being enacted, why can’t there be a consultation with the Leader of the Opposition? It affects all New Zealanders—all New Zealanders. So it’s only reasonable that the Leader of the Opposition should be consulted when the Prime Minister makes one of these unilateral decisions.

To bring in this silly argument that because the Leader of the Opposition dared to say that the public of New Zealand should know the lawful basis on which the Government acted is somehow a complete contravention of all things democratic is totally wrong. It is the fundamental point in a democracy that a Government acts lawfully, and if they were they would release the documents, but they’re not. They know they’ve pushed it right to the edge. They know it’s been a marginal call, and they probably know that if they release those documents, anybody who’s been slung into court who should have been because they were breaching the rights of other New Zealanders will probably walk free.

The Minister sits there and laughs. Well, what’s he hiding? Because he’s hiding something. And for him to say that “Because I’ve chosen to hide something and the Leader of the Opposition has had the audacity to challenge my right to do that, we don’t want him consulted over things that would be of huge importance to all New Zealanders.” Any track back to the sort of situation we’ve had over the last seven weeks is even more disastrous than what New Zealanders are going to have to put up with for years to come as a result of that. But, apparently, no, the Government of the day knows so much that they don’t need to at least consult on such Draconian methods. That, I think, is very, very sad, and I think is a disappointment for a Government that touts itself as being so open, so transparent, and so in touch with the needs of New Zealanders. Well, I tell you what, there are all sorts of political regimes throughout the world who make the same claims with just a little bit more disastrous effect.

Thank you, Madam Chair. I am picking up specifically on Part 2, clause 20, and I’ve also got Supplementary Order Paper (SOP) 497 in front of me, which relates to those very clauses. I want to pick up the reasons why the definition of “marae” has been included in the original text, and I also wanted to ask the Auditor-General if that SOP that is now going to remove the words—the definition of the word “marae” is on the table. There is a longstanding legal use of having to single out marae because of the differentiation between private dwellings and the grey area where marae fit. So I understand it was included in that respect, but in Part 2, clause 20, “Powers of entry”, it singles out marae specifically originally to actually overlay an extra threshold of protection and criteria so that warrantless entry can happen, and we are seeking to remove marae—and I will come to the context of why that too has happened, but it also then removes those extra layers of protection.

So I will just pick up on the Part 2 part of the bill, and it is something that the Greens absolutely believe needs to be scrutinised—these warrantless powers—and absolutely uphold that there needs to be public conversation. Some of that we’ve heard just overnight in the community on social media. But we worked to provide an extra layer of protection around warrantless entry that included for marae needing to have extra grounds or reasonable grounds, and that they would only enter premises if it was necessary to direct people to disperse. There were a number of extra thresholds that were worked on in the current version of the bill. And the SOP—I’m wanting some clarity as to whether those extra protections remain or whether the marae now has the same status as every other venue and place.

I’m hoping that I can address the context of why, I also understand, removing the word “marae”, from our perspective, is important, because there has been public outrage as to that inclusion of the words, feeling that marae were being unduly targeted, particularly in that Part 2, clause 20, of the bill. That outrage acknowledges a longstanding historical, current, and colonial context of the justice system being unfairly applied to target Māori communities, brown communities, and low-income communities. The police themselves have acknowledged that longstanding legacy, and I do acknowledge the ongoing work that they are wanting to do to correct that and to have a different approach. But that is one of the changes that has come through in, I think, SOP 497, but it certainly addresses Part 2, clause 20. Then I simply wanted to put on record that that outrage has come from a particular context and has brought us to some changes which we are seeing today, which I am supporting for that purpose. But some misinformation has also been drummed up, including by the Opposition members around the meaning and the inclusion of the word “marae” in the very first place.

In my final time left on this particular call, I understand—again, we’re going to clause 20, “Powers of entry”—the reasons and the hardships that people have faced with the interruption to our ordinary liberties. We’ve all felt that in many different ways, and particular groups and people and sectors have felt it in big massive ways. We need this legal framework to be able to sit behind alert level 2, and so on and so forth. I do welcome the change to review—rather than have the two-year outset sunset clause, we will actually review at more regular and closer terms. I think that that’s absolutely something that we all should welcome, and I’m very pleased to see that happen also. But I think just if the Auditor-General could explain a little bit more about the inclusion of the word “marae”.

Yes, essentially, the member is correct in her description. For the reasons that she’s outlined, the combination of these two Supplementary Order Papers is that—assuming they are passed by the committee—if they were to be passed, then section 20(2) then reads: “However, subsection (1) does not apply to a private dwellinghouse” and there is no reference to marae.

There is the protection left, which has been inserted at subsection (8), that if a marae was entered as a private dwellinghouse—and that’s a question of law as to whether it is a private dwellinghouse; we’ve had that discussion previously as to there being a number of roles that maraes undertake, for want of a better word—then the power that’s exercised triggers a requirement to send a copy of the report that has to be sent to someone senior in the police and also to the committee of the relevant marae.

Thank you, Madam Chair. I want to acknowledge the outrage that the co-leader of the Green Party expressed a moment ago about the point that she was making, and also I acknowledge the fact that the Attorney-General has just responded to that. But I am left wondering why the co-leader of the Green Party and her colleagues are not expressing similar outrage to some of the very Draconian measures that this House, this committee at this stage, is being asked to enact in Part 2 of this bill. Because the Green Party has a very long—and they would consider proud—tradition in this country of protesting against attacks on civil liberties and constraints of our freedoms, and they have been extraordinarily silent in all of those matters on this particular bill to this point. So I just ask them to explain to their own members, who are fond of getting out to protest, participating in every demonstration that’s going around the country, why they are so silent on this particular Draconian piece of legislation.

Now, I’d just like to throw my support behind two Supplementary Order Papers (SOPs) relevant to Part 2 that are in the name of the Leader of the Opposition. The first is SOP 500, in which he was seeking to have the restrictions that are being placed on funerals, tangihanga, weddings, and other services—not just in Christian churches, but in places of worship right around the country, this very diverse multicultural country that we have—lifted, because I have been inundated in the last 24 hours by messages of concern by people throughout New Zealand and I’m sure members opposite must have been, as well. I feel it personally. I want to echo the very moving words of my colleague Simeon Brown, the MP for Pakuranga, when he spoke on this topic—it might have been late last night, I think.

New Zealanders value their right to worship. That is a freedom and a human right that we should never take away from them. The reason why I support this SOP so strongly is because worshippers, whether it’s in a temple or a synagogue or a mosque or a church or wherever they might worship—I don’t know where Zoroastrians worship, but wherever they worship, and I’m pleased finally that I’ll be able to tell my younger daughter I’ve worked Zoroastrians into a debate—they should be trusted to worship responsibly. I say to the funeral directors, the celebrants, the ministers—anyone who would be organising a service of that type, particularly for those who are grieving—we respect the work you do and we trust you to enforce the rules, as you always would do and as would be absolutely simple for you to do in those places of worship.

How utterly ludicrous that 50 or more people can go to the cinema and be trusted to sit with appropriate physical distancing but 100 people can’t be trusted to go to a funeral in a large church and observe the same rules. That is nonsense. We have called it out constantly. I’m asking one more time, in this committee stage, for the Government—and not just Labour members, but New Zealand First and the Greens as well—to stand up for the rights of those New Zealanders to worship responsibly and not to impose upon them this Draconian, utterly unjustifiable, ludicrous constraint, which is actually going to engender contempt for the law rather than respect for it.

The other SOP I wish to speak in favour of is SOP 501. I endorse the words of my colleague the Hon Dr Nick Smith, when he spoke earlier. The National Party holds the majority of electorates in this House. We are the largest party in the Parliament. We accept we’re not in the Government—there’s no argument about that—but, nevertheless, given the important role we as an Opposition have in our constitutional framework, I strongly echo the plea for the Leader of the Opposition to be included in the consultation process. I also acknowledge David Seymour as an electorate MP and his concerns about some of these matters.

There is good constitutional precedent. We’ve seen it with the Epidemic Response Committee, which the Leader of the Opposition has been presiding over very responsibly and very fairly; members of all parties have been involved. The same principle should apply in this particular important phase—if this bill is going to go through, and the Government has the numbers to do it—to at least ensure that the Leader of the Opposition can also be consulted.

I say affectionately that it takes a legal vulture to bring Zoroastrians into the religious discussion here—and the member who’s just taken his chair, Tim Macindoe, will get the amusing reference that I’m trying to make there. I do accept the point that is made about religious liberties; they’re very important. I make the point that the effect of this on religious liberties arises from orders that are made under framework legislation, and I repeat that why the Government will be voting against that Supplementary Order Paper 500 is that we have to contemplate future orders being able to take religious gatherings to limited numbers, as they have been in recent weeks, down to, essentially, zero, at which point religious gatherings have had to be online. It’s an undesirable outcome, but that’s where we have been.

The question as to what we do for funerals, whether the limit should be 10 or 20 or 100, as the member would say, is an issue for the notices that are promulgated under clause 11 notices or, previously, section 70 notices under the Health Act. This doesn’t do more than those section 70 notices can already do; it, effectively, carries that forward should we have to go up to level 3 or 4 again in the future.

In respect of the question as to what is appropriate under level 2, I, again, accept that that is an appropriate issue for the Opposition to question, and they should do that, in my opinion, through the criticisms or otherwise of the section 70—now clause 11—notices, rather than through the breadth of discretion that may be necessary in the future under the clause 11 notice, and that’s why we will be voting against that. I think I’ve made it clear the Government’s position and reasoning for it in respect of the other Supplementary Order Papers that are already on the Table.

Well, thank you very much, Madam Chair. I want to pick up on Part 2 of this legislation, and, in particular, clause 9. It says that the “Minister may make section 11 orders”, and I actually think that’s one of the better parts of this bill, because the principle that’s been advanced is that the person making orders that limit New Zealanders’ freedoms at least should be somebody that we have the opportunity to vote out. As Karl Popper said, the best you can say for democracy and the main purpose of it is that it allows the people to bloodlessly remove bad Governments. So that’s not a bad starting principle.

The difficulty we have is that there seems to be a lot of confusion in the bill about the comparative role of the unelected Director-General of Health and the elected Minister of Health. Now, I suspect the people of Dunedin North may actually decide to bloodlessly remove their local member, he of the lockdown bike ride, but what they will never be able to do is remove the director-general. There is no Director-General of Health on any ballot paper in any election in New Zealand. The problem is that the way the bill was introduced, it does give considerable powers to the director-general, and, worse than that, in a way, the powers of the director-general are greater than the Minister—in some ways they are; in some ways they’re not. This is something that deserves to be debated and is the purpose of a committee stage.

The Minister, according to clause 9, must, before they make any kind of order restricting New Zealand’s freedoms for the purpose of battling COVID-19, consult the Minister of Justice and the Prime Minister, any other Minister that he thinks fit—that’s clause 9(1)(c). They must “have … regard to any [other] decision by the Government on the level of public health measures appropriate”, it says. So there’s actually quite a lot that the Minister has to consider, and they have to give a 48-hour notice before any public health measures come into effect. All of this, I would say, is a vast improvement on the kind of seat-of-the-pants, unclear, and arbitrary diktat to which New Zealanders were subject during level 4 and level 3 of this COVID-19 crisis.

But where it gets difficult is that the Director-General of Health can also introduce measures that restrict New Zealanders’ freedoms—in fact, in all the ways that a section 11 notice allows your freedoms to be restricted. You can be stopped, stopped from gathering, stopped from doing certain things, stopped from moving things around the country, stopped from opening a business, stopped from going to your church or worshiping, having a funeral—just about anything you can be stopped from doing under a section 11 notice, and the director-general can issue them. So we support the principle of the democratically elected Minister being able to do it; what we don’t support is the principle of the unelected director-general being able to issue these notices. The director-general doesn’t have to consult the Prime Minister, doesn’t have to consult any other Ministers such as the Minister of Justice. He can just make the decision unilaterally.

So, in many ways, the director-general actually has greater powers than the elected Minister of Health. What’s that about? Well, a couple of clues: the director-general can only issue a notice for a region, one territorial local authority at a time. No obvious reason why they couldn’t just issue 70-odd and lock down the whole country, but that’s one constraint. And they can only issue it for a month at a time, but it’s infinitely renewable. So there are some constraints, but, by and large, the director-general has all of the powers of the Minister of Health and far less responsibility and accountability. That seems to me to be a mistake.

Now, I have an amendment, set out on Supplementary Order Paper 495, which is designed to get around this. The solution, it would seem to me, if the objective is for the director-general to be able to issue sudden emergency orders, if it seems that a virus or an epidemic is about to break out in a particular region and it’s a matter of hours, a matter of days, to take action and squash it, well, you can see why the Government might have thought it was good to give the director-general the power to do that in a small region for a short period of time. But a much better way to approach this would be to say, “OK, if that’s the objective, fine. I’m not sure I agree with it, but OK, fine. The director-general should be able to issue a notice for 48 hours.” Why 48 hours? Because that is the warning that the Minister of Health has to give before his or her notice comes into effect.

So the policy objective is maximum democratic accountability and maximum nimbleness in moving to stomp out an outbreak of virus. The way to do that is not to give this kind of workaround where the director-general basically has all the same powers, but, actually, to say the director-general and the Minister of Health have different roles. The director-general can issue a short-term, regional directive for a maximum of 48 hours. After that period, it is necessary for the Minister of Health, with all the democratic accountabilities and constraints—they need to consult the Prime Minister and the Minister of Justice and risk being voted out of office for not doing a very good job. That Minister is the only one who can make a directive that lasts longer than 48 hours—so the director-general for the first 48 hours in a region, but everything more permanent than that has to be done by the Minister.

This is what I mean by engaging to make better law. I’m increasingly coming to the conclusion that, actually, this law shouldn’t pass. It’s just not good enough, and it’s almost—in fact it is—worse than what we’ve had to date. But let’s continue to engage and try to make it better. I would hope that members of Parliament from all parties would consider this point about the interface between the rights and controls afforded to an unelected civil servant—the Director-General of Health—and the responsibilities of an elected politician who can be voted out—the Minister of Health.

I’d appeal to the Green Party, because for as long as I’ve been in Parliament, and a lot longer before then, there was one thing you could always say about the Green Party. You might think that maybe their economics were a bit on the unorthodox side, to be polite; you might sometimes wonder if their environmentalism was entirely based on science; but you could always rely on the Green Party to be there standing up for civil liberties, until they got into Government. Here’s a great opportunity for the Green Party to stand up, speak their mind, and assert their independence, because I can tell them from bitter experience, if a support party in Government doesn’t do that, they’re in political trouble. So even if they don’t care about civil liberties, they should still do it for the purpose of their own political survival.

I say to New Zealand First: there’s a reason that Winston Peters has been voted out of three electorates and sacked from three Governments. It’s because when it really matters, he’s silent—haven’t heard anything. Maybe he’ll try and take the credit for the bill as introduced. Well, that would be politically suicidal in my view. The fact of the matter is Winston Peters should be down here in the Chamber standing up for the basic rights and freedoms of the ordinary bloke and “bloke-ess”, which is how he likes to profess himself. But where is he?

💬 Hon Member: He doesn’t care.

He doesn’t care, is what I’m hearing. I think that’s a bit harsh. But I would actually appeal—even on such a basic issue as do we give this power to elected officials New Zealanders can vote out or unelected civil servants—for the so-called support parties of the Government—New Zealand First and the Greens—to get down here to the Chamber, take a call, stand up for themselves, and stand up for New Zealanders, because if they don’t do that, New Zealanders might just decide to stand up to them in a few months. Thank you, Madam Chair.

Can I thank the member David Seymour for acknowledging that the format of the exercise of the powers under this bill, through the Minister, with political and democratic accountabilities, is an improvement on leaving those powers as they currently are under section 70 orders under the Health Act with the director-general. This is achieved through clause 9 of this bill. I agree with the member, and I also note that this is what the overwhelming majority of constitutional academics have been calling for. I think that is very responsible of the member to put that on the record, and I think he is correct.

In respect of the statement that this is preferable to—and I think he used the word “diktat”, that has been used previously. Can I remind the committee that, actually, the Government is bound by the law, and the existing law under the Health Act required us—and the only powers we had were under the Health Act—to do it that way, which is through the director-general exercising those discretions in respect of those notices, not the Minister. That’s what’s changed by this bill.

As to the member’s secondary point about whether the power for the director-general to make orders within a single territorial authority—oh, sorry, just before I go that point, I’ll go to the point that the Minister must have regard to the advice of the director-general. Now, if that advice from the director-general said, “Look, COVID’s passed, no need to do this.” or “The risk’s passed, you don’t need to do this.”, obviously, if the Minister then took a decision to impose what were seen by the director-general to be unnecessary constraints on the way we live our lives, that would be just justiciable—and that’s another point that David Seymour made yesterday. Obviously, if that happened, I would have thought that the courts would strike down an order from the Minister to that effect, and that’s an additional protection that doesn’t currently exist at law.

In respect of the issue as to whether the narrower power in respect of an urgent order for a single territorial authority district should expire after 48 hours, I would note that the director-general has to have found that it’s urgently needed and it’s the most appropriate way. So, again, there’s something justiciable there. I would also note that under clause 15(3), I think it is, of the bill, the Minister has the whip hand and the responsibility, essentially, because it says that “The Minister may, at any time, revoke [a] section 11 order made by the Director-General.” So the ministerial authority through that accountability regime and democratic oversight and democratic responsibilities that Ministers have to take is actually seen through that provision. So, for that reason, we’re preferring that mechanism rather than a 48-hour expiry.

Thank you, Madam Chair. Look, I’ve been getting quite a few messages from up north asking me what the hell’s going on in Parliament, this morning and last night, and so I thought I’d explain it in layman’s terms. I said, “Basically, what we’ve got here is we’ve been managing a crisis”—and I’ll give credit in part to the Government in some of the way they’ve handled it—“but they didn’t have the legal framework to actually do some of the things that they’ve been doing.” I’ll give you an example: the checkpoints up north. There’s no legal authority to block the road and direct people to receive brochures or be turned around—there’s no legal authority to do that. So, effectively, for the whole time that this lockdown’s been going, the police have been bluffing.

I don’t blame the police—I’ve got a lot of time. I’ve had a lot of contacts from a lot of the police, and they have been really, really unhappy with the situation that they’ve been put in. So they’ve been put in a situation where they’ve got to try and bluff. They had no legal framework. So, effectively, up until now, several aspects of the lockdown have been illegal. So I understand that they’re bringing this legal framework in—I get that.

I sort of wonder to myself: would the Greens have supported this legislation if National had proposed it? Honestly, would they have supported this legislation if National had put this forward? I’d say it would be a big no, but they’re swallowing a dead rat.

So the reason why they won’t release the legal opinion is because it’s been illegal. But what gets me about this legislation is that the politburo, the Minister, can make a ruling under section 11 and it can be 10 people allowed to go to a funeral and yet 100 people in a bar, and that makes no sense. There’s no logic. It’s not fair. We have a woman that was locked down in quarantine in a hotel in Auckland, and she couldn’t get to see her dying mother, and she was beside herself. They wouldn’t test her—she hadn’t been tested. She’d been there for about seven days, and she just wanted to go and see her mother and go straight to her house, lock down there, and spend the last two or three days with her mother. I found out from speaking to her that she might not last the four days she had left before she got out. It took the court to overturn a stupid ruling by this Government that they had to lock them down for two weeks and there are no exceptions—it took a court ruling.

I’ve got this situation in Kaikohe in Northland where there were five dairies open, with people going in and out at random, buying their product, and yet the butcher and the greengrocer at each end of town couldn’t open. One of the greengrocers—he’d spent 20 grand on product because he’s stocking up, thinking that he was going to have a run on his product, and he lost the lot. He couldn’t trade. For me, that was like, “Where’s the common sense in that?”

So I look down here and I see the rulings that can be made by the Minister or the director-general. I think it’s the Minister now; it’s not the director-general but the Minister. They can impose conditions on you that they might be able to justify, but as for what’s happened previously, it cannot be justified. So we’ve got an authorised person that can come and enforce these regulations, and the stipulation of what an authorised person is is, to me, a clipboard warrior—a Government employee. I mean, it could be anyone in a high-vis vest who’s going to turn up at my business and shut me down based on some rules made by the Minister, and the current Minister is the one that bikes to the beach and goes and moves house and all that sort of thing—so no credibility there.

So I have real serious concerns about this. The warrantless search of a person’s property because they might have 11 people at a wake or a tangi—I can’t believe that we are allowing that and that we’re going to put a law through that allows even the police or an authorised person to actually go into someone’s house over some regulation that the Government have put forward, as dumb as 10 people at a funeral. I mean, it just gets me.

But what gets me more about this whole thing is that they gave it to us a day or so ago—no select committee, no scrutiny. We’re doing it under urgency—no regulatory impact statement, nothing. I’m struggling with how this Government’s operating. In my view, this Government should be hanging their head in shame, collective shame, over this bit of legislation. The quote says, “The only thing necessary for the triumph of evil is for good men or women to do nothing.”, and that’s what I think is happening here.

Thank you very much, Mr Chair. I acknowledge the Attorney-General’s comments in relation to what I said earlier about clauses 9 and 10 and the different powers and responsibilities given to the director-general, a civil servant who’s not elected, and the Minister of Health, a politician who New Zealanders can actually vote out if they don’t like. I acknowledge what I think was the Attorney-General’s answer, that, well, if you don’t like it, you can go to court. I actually think it’s an improvement on what we’ve had, but just remember: something happening within 48 hours to get a judicial review—I can’t tell you exactly what the going rate is, but as a rule of thumb, getting a judicial review is 60 grand. Not every New Zealander has a spare 60 grand ready just in case they don’t like something the Government does and want to get a judicial review. I think it would be better to adopt the amendments that I have proposed on Supplementary Order Paper 495, and properly circumscribe the power of the director-general, than rely on people to take 60 grand off to their lawyer and get a court order, because judicial reviews are not a cheap hobby.

But I’d like to move on to clause 11, and that is “Orders that can be made under this Act”. It starts off fine: it basically gives a list of orders that could be made, but once you look into that list, you see quite how extensive they are. There are some of them that I don’t think are that bad—for example, it says, “stay physically distant from any persons in a specified way”. Well, that’s the sort of law that we could have and perhaps should’ve had all along, that, you know, you can’t come within 2 metres of someone or you can’t come within a metre of someone, and you have to be able to wipe down surfaces. If that was the way of stopping the spread of a virus, that might’ve been OK, because it wouldn’t tell any specific person what they could or couldn’t do. It would say, “Here are the rules; you innovate around them.” A lot of businesses that did innovate got shut down by direct orders, by these “King Henry VIII” - style powers. It’s actually really deadening to innovation, to people’s sense of ownership and creativity.

So some of this stuff is not too bad, but there’s a lot of it that is far too general. It says, for instance, “stay in any specified place or refrain from going to any specified place: (i) refrain from associating with specified persons: … (viii) refrain from participating in gatherings of any specified kind … require things to be closed or … open … prohibit things from entering any port or place”. These are the kinds of powers that allow what we are seeing that is outraging New Zealanders so much. So it’s OK to say you can have a funeral with this many people, but a party with this many people. You can worship in a church with 10 people, but you’re allowed to have a bar open or a gym with 100. It’s that kind of specific diktat that New Zealanders can’t understand and are angered by.

These initial basic rules: don’t go within a metre of another person, wipe down surfaces—you know, that sort of thing—don’t go near somebody who has tested positive for COVID-19. Those are basic rules that people might say, “OK, we understand the need for that. We can operate around it.” But when it comes to these rules that impose on a particular person or a particular type of business or type of activity, that’s when it gets really hard, because people get picked and chosen against, and that is not consistent with the rule of law—the rule of law being one of the reasons that you might have thought this bill was worth supporting. I certainly did at the beginning of this debate.

That takes us to clause 12, which further compounds the problems I’ve identified with clause 11. You see, you go to clause 12(1)(b) and it says these orders can apply “in relation to people, generally to all people in New Zealand or to any specified class of people in New Zealand”. This is where it gets extremely tricky, because instead of making basic rules—we say, “This is the rule of law. These are the conditions that everybody must face.”—the Government starts to pick and choose between different groups of people. This is where you have a real problem, because you can only assume, in the context of what’s happened with COVID-19 in the last eight weeks, that what they might have in mind is that the elderly should have different rules made for them. Well, a lot of elderly people out there would be highly offended by that. They might say, “It’s my life, it’s my risk, and if seeing my grandchildren is more important than some calculated reduction in the odds of contracting COVID-19, I should have that right.” A lot of people over 70 highly offended by the way that they have been, in their view, patronised.

But what if it was discovered, for instance—and there’s a lot of chatter about this out there—that different ethnic groups actually had different susceptibility to the virus? In theory, this law would allow a class of people to be a race of people. That is an outrage. That is an absolute outrage and should never be allowed under New Zealand’s laws. There could be bases for that that we’ve actually heard people discussing lately, that maybe different cultures have different cultural practices and should be treated differently. Normally, if someone told me that members of this Parliament would start saying that different races should be treated differently, I’d say you’ve got to be kidding—that wouldn’t happen. Well, it’s actually started to happen, and now we’re being asked to put in place a law that actually allows it to happen.

Then it goes on to clause 12(1)(c) and says, “exempt (with or without conditions) from compliance of the application of provisions … any … class of persons”. So not only can a particular group of people be singled out and have an order placed on them but a group of people can be exempt from it. I spoke at the beginning of this debate, the first reading speech—I said the critical, critical concept here is the rule of law. The rule of law protects the weakest or the most vulnerable and the minorities in our society, because everybody can see it written down in black and white and have it applied to them equally without fear or favour, no matter who they are. The rule of law and the right to live in a democratic society where we can send representatives to this House and debate and make those laws that protect our rights—well, if that’s not what it means to be a New Zealander, I don’t know what is.

But this bill—as we get further and further into the detail, we discover that, actually, it allows directives to be made by the Government that apply different standards to different groups of people on who knows what basis that are not properly defined. There’s nothing in this bill that says why a different so-called class of people might be treated differently based on the Government’s presuppositions about them. That is not the hallmark of a free society where people can point to the law and say, “I have my rights, and you cannot violate them because it’s written in black and white in the statutes of the Parliament I helped elect.” A society that believes that is the one I want to live in, but the society that this law gives us is one where classes of people can be treated differently by the Government of the day because the Government of the day thinks that it should.

Now, that is the criticism, but how would it be done better? How could this have been done to achieve the Government’s public health objectives, balancing, as I’ve frequently said in this debate, those objectives with the rights and freedoms of New Zealanders? Well, if the content of clause 11 notices was limited to making basic public health rules that applied to everybody—don’t come within contact of another person, don’t come within a certain proximity of another person—and didn’t single out classes of people or types of businesses or activities such as funerals versus parties, then I think we could say that is the right way to make laws. That is what the great economist and philosopher F A Hayek told us we should do, that we should have basic laws that people can follow, leading to a spontaneous order as people plan their activities around those laws. Unfortunately, this bill goes so much further. It cannot be supported. Thank you, Mr Chair.

I think it’s really important, in this Chamber, that we take a moment to reflect on the significance of this bill, and I want to quote back the acting Attorney-General in the opinion that he put up where it said this could, effectively, “if applied to their fullest extent, impose arguably the most extreme and significant limitations on New Zealanders’ ability to freely go about our daily lives as has occurred in modern New Zealand history.” It is important to look at the backdrop for this bill. I have said many times to my constituents that we understand the scale of what the Government has been dealing with. They’ve been dealing with imperfect information, a global pandemic at rapid pace, and National supported—as you would do in a national emergency—the capacity of the Government to act and flatten the curve. But the debate in New Zealand on the backdrop to this bill has been about three or four things.

The first is: what is the country strategy for New Zealand? Is it about elimination; is it about containment or suppression? We have watched across the world as countries like Australia have had similar health outcomes, and it’s very relevant for this bill because we are, naturally, as a nation, comparing their outcomes and then what the restrictions of freedom of movement, of freedom of association, are on New Zealanders. So we have had those questions that have been asked. We then had the extraordinary situation where there has been a question of the legality of this Government acting at this time of national emergency, and what we have argued is a very basic principle: not only would you consult with the Opposition at the largest juncture of national emergency in our history but then also you would have transparency about the legal situation in New Zealand. The fact that we have not had what I think is genuine engagement with the Opposition to operate in a way, at the time of national emergency, but also that we have not had transparency about the legal basis of lockdown is incredibly, incredibly shameful.

The reason that we are here is because we want to do something about it. We want to—and we have an obligation to—assist the Government in a constructive way to develop rules and laws that enable us to, as my colleague David Seymour has said, ensure that we can keep the public safe while doing it in a way that is forensic and surgical and does not impinge unnecessarily on the freedoms of basic New Zealanders. The reality is that what we have had at a process level is absolutely appalling. There have been weeks and weeks of this emergency, and to give the Opposition 24 hours—and I have referenced Andrew Little’s opinion about the significance of this legislation—is not good enough. So if we are standing up here and standing up for the right of New Zealanders to have a decent process around this law, it is because we understand the capacity to restrict basic freedoms.

I want to remind the committee of some of the constituency cases that I have had, but also why the stakes are high. I have dealt with people who are dealing with dying relatives. They can’t get out of quarantine; they are, literally, counting down the clock as they may not see their loved ones. I have dealt with people who have not been able to see people and have actually ended up with significant mental health issues. I have dealt with families who are dealing with people who have committed suicide. I have dealt—as many other MPs in this House have dealt—with the social consequences of the restriction of freedom. So we absolutely, in this House, must have a decent process around this legislation, because it deals with very, very sensitive areas of society. The reality is, when you’re dealing with the passing away of someone, it is a significant issue to restrict that to 10 people.

Now, we completely understand that what the Government is now saying is that they will make these rules up post this bill, but my argument to the Government would be: on the backdrop of a major national emergency, where you’ve got questions of proportionality, you’ve got questions of the basis of science and the public rationale, you’ve got questions of transparency, how could you possibly turn up to the Opposition and give us 24 hours’ notice to be able to debate very complex rules and the balance of freedom of association, and the balance of how we mitigate the public health risks with basic freedoms of New Zealanders?

So my question for the Government is: why can’t you properly get to the table with the other political parties in this Parliament at a time of national emergency and work together to adequately define and deal with the real issues of concentration of power? Because I think that that is the right thing to do—I think it is the right thing to do in a national emergency, as a former Minister of Civil Defence, and I think that New Zealanders expect that, because they believe that, actually, this Parliament needs to be respected because this Parliament represents them. So that is my question for the other side.

I move, That the question be now put.

We’ve had a lot of contributions—and I will call David Seymour. I just want to ask members to—there’s been quite a wide debate that has gone beyond Part 2. One of the exceptions is Mr Seymour, so I am going to give David Seymour the call.

Well, thank you very much, Mr Chair. It’s not that I don’t deeply empathise with the points that Nikki Kaye has entered. I represent the Epsom electorate, which is adjacent to her Auckland Central electorate, and we’ve got a lot of very similar issues going on. It speaks to the need to balance public health measures with the other objectives people have, such as farewelling their loved ones at funerals.

But I do, in the spirit of what you’ve said, want to keep very closely to this bill, and specifically the clauses in Subpart 3 of Part 2. They start with clause 18 and they begin with this idea that we’re going to have so-called enforcement officers or authorised persons. I think it’s really critical that we’re having this debate because people who are watching this committee—and I know we’re in a ratings war with the Epidemic Response Committee right now—need to know exactly what this bill actually proposes.

One of the most extraordinary parts is this idea that the Government is able to appoint—or, actually, not the Government; the Director-General of Health, specifically—so-called enforcement officers who can be, initially, anyone. So when they introduced the bill, it literally could have been a group of people who are having a roadblock or checkpoint in the community. People such as that could have actually been given a badge by the director-general and told, “Go hard, and enforce my directives.” I think that’s something we just need to dwell upon for a moment, because it’s quite an extraordinary thing that the State actually has a law that allows it to appoint vigilantes.

Now, I think it’s worth noting that the Government has subsequently introduced a Supplementary Order Paper that says that the person made an enforcement officer has to be an employee of a current Government department. I think that’s better, because people in Government departments at least have some sort of obligations to behave in a responsible manner—whether or not they always do is another issue.

Yet at the same time, we’ve done the most extraordinary thing, that we’ve introduced people with quite extensive powers—which I also just want to get to, because people need to understand what powers these enforcement officers have—and yet there is no accountability mechanism for them. I’ve got amendments on Supplementary Order Paper 496, which I’ve put up, which basically do two things. First is that there’s actually the right to complain about one of these enforcement officers, because as the law’s currently drafted, they can come into your house, shut down your business, do all sorts of things, tell you that you can’t drive on the road, and if you don’t like it, tough.

The problem with that is that you actually end up with people who know they have no accountability. So it’s not just that they’re randomly bad and you can’t complain about the bad ones. I’d like to remind the committee of a great book again, by one of my favourite thinkers, F A Hayek, called The Road to Serfdom. Chapter 10 of that book is entitled “Why the Worst Get on Top”. It’s because when a Government introduces a regime for people who want to exercise power—all the nasty little people that maybe had a tough time at school and want to exert some revenge on society—guess what sorts of people sign up for jobs with untrammelled authority! So it’s worse than you think, because as soon as those jobs are created, you either get people that have always dreamed of them or people that realise they have unconstrained power and use it.

So that’s why my amendments on Supplementary Order Paper 496 first of all would say that a person may complain to the director-general about the behaviour or conduct of an enforcement officer that, let’s remember, the director-general has appointed. I think that is absolutely critical. Secondly, this amendment would give a person the right to receive from the enforcement officer the terms on which they can complain, and the rights that they have under the New Zealand Bill of Rights Act when these enforcement orders are visited upon them.

I think it’s absolutely vital that that process is in place. I’ve had some discussion with the Attorney-General about this, and I appreciate him being prepared to engage. What he said is that he was open to entertaining part of my amendment, but he’s now unwilling to do that because Government employees who work for Crown entities already have a complaints procedure. Well, I understand his logic, but I don’t think it’s sufficient. Here’s why: if it was, for example, a WorkSafe inspector coming into your business and acting at the behest of the director-general, acting at the behest of the Minister of Health, where is the process for a person aggrieved by the way they’re treated to actually go and complain?

This happened, in the lawlessness that preceded, to Jack Lum’s, a fresh fruit and vegetable store, an iconic venue in Remuera. They were told, in no uncertain terms—with no comeback and no right to complain—that they had to shut down. Now, the interesting thing about that is that the plain-clothes police officer that told them they had to shut down does have a complaint process; it’s called the Independent Police Conduct Authority. But the problem was there was no accountability for the enforcement of this particular directive. That’s why this Supplementary Order Paper, that gives people the right and gives people the right to be told their rights, gives them the right to complain to the person that put the directive in place, is so essential.

I, again, would appeal to members of the committee to actually think carefully about the amendments on Supplementary Order Paper 496, and perhaps for some of the Government support parties that have always been standing up for the ordinary bloke, in the case of how New Zealand First professes itself, or the Greens, that erstwhile defender of civil liberties in this country, to actually consider crossing the floor and voting for it. The reason they might want to do that is that they need to recognise quite how severe the powers of enforcement that these enforcement officers—who are not police, by the way; these are people basically commandeered by the director-general to enforce the director-general’s or the Minister of Health’s will. Well, they can enter without a warrant any land, building, craft, vehicle, place, or thing, if they have reasonable grounds to suspect that a person is failing to comply with any aspect of a section 11 order.

So the Government makes an order, and a person can enter your property or your boat or whatever and come and tell you to stop doing it. They can also come into your house or your marae with no warrant, if they are a constable. You know, these are quite big steps. I think we should just think for a moment. I know that there’s been a lot of panic around the global COVID-19 pandemic. I know it’s a problem, but do we really have a sense of proportionality about the rights and freedoms we’re giving away here in order to fight it? I’m not so sure that this Government has thought that through.

Not only can they enter—going on to clause 21, the power to give directions: “direct any person to stop any activity that is contravening or likely”—likely—“to contravene the order”. It doesn’t take much of a threshold for you to suddenly get ordered around by a person who wants to be in this role—remember “Why the Worst Get on Top”—of unconstrained power, where you don’t get given your rights and you don’t have the right to complain to the person that was responsible for all this. It’s quite an extraordinary situation that the Government wants to put us in.

Once they’ve done that, well, you know, they can close roads, public places, and stop vehicles. Directions may be given verbally or in writing, so they can just tell you. Then you get to the offences: you can be put in prison for six months or fined $4,000 if you don’t follow these directives. Now, I actually wouldn’t mind having penalties for enforcing the law if the law was tight and clear and appeared to everyone equally and was enforced without fear nor favour, but none of those conditions are met. What you’ve got is a commandeered rabble of people that the director-general has raised up who can go round, tell you what to do, fine you, or even get you put in jail for six months if you don’t follow these poorly defined Government directives. That is why this bill should not pass. The more one looks into it, it’s impossible to support.

I move, That the question be now put.

Motion agreed to.

The question was put that the following amendments in the name of the Hon David Parker to the proposed amendments set out on Supplementary Order Paper 497 in his name to clauses 11, 12, 18, 20, and 24 be agreed to:

in clause 11(1)(a)(ix), replace “contract” with “contact”;

in clause 12(2)(c), replace “section 11(b)(i)” with “section 11(1)(b)(i)”;

in clause 12(2)(d), replace “section 11(b)(i) or (iii)” with “section 11(1)(b)(i) or (iii)”;

in clause 18(1), replace “the Crown” with “the Crown or a Crown entity (if specified in Part of Schedule 1 of the Crown Entities Act)” in both places where it occurs;

in clause 20(2) and (3), replace “any specified private premises” with “a private dwellinghouse”;

in clause 20(8), replace “subsection (3)” with “subsection (1)”;

in clause 24(2), replace “a District Court Judge” with “the District Court”; and

in clause 24(3), replace “The Judge” with “The Court”.

The Hon Simon Bridges’ amendment to clause 22 set out on Supplementary Order Paper 498 is out of order as being the same in substance as a previous amendment agreed by the committee.

The question was put that the remaining amendments set out on Supplementary Order Paper 498 in the name of the Hon Simon Bridges be agreed to.

In my contribution during Part 2, I mentioned I wished to seek leave to table a letter from Nelson funeral directors around the impact of the controls. I seek leave for the letter, dated today, from Marsden House to be tabled as part of the House record.

CHAIRPERSON (Adrian Rurawhe): Leave is sought for that purpose. Is there any objection? There appears to be none. That can be tabled.

Document, by leave, laid on the Table of the House.

Part 3 Amendments to Civil Defence Emergency Management Act 2002