COVID-19 Public Health Response Bill

on behalf of the Attorney-General: I move, That the COVID-19 Public Health Response Bill be now read a third time.

It has been a very instructive debate through all the stages of the House in the last day or so. I thank all members, and particularly the members of the Opposition who were right to vigorously scrutinise and contest and challenge the legislation the way that they did. This is not the way that laws should be passed, and I think we’ve acknowledged that. But these are extraordinary circumstances, and they do call for both the Government and Parliament to be nimble and agile to be able to respond.

In the contributions that have been made in the last day or so, members opposite have quite correctly raised concerns about the threat to and the curtailing of the various freedoms that invariably orders of the nature contemplated by this legislation would create. They express concern about the threat to the freedom of worship, although the bill does not talk about the freedom of worship and putting limitations on expressing particular religion, and, in fact, it’s interesting that even in the last six or seven weeks, many adherents of many religions have been able to worship—differently to what they used to do. They haven’t necessarily been able to go to their houses of worship, but they have nevertheless participated in reasonably public services and expressions of their faith.

Members opposite raised concerns about, as they characterised it, New Zealanders not being trusted. I’m going to come back to that. [Audio failure]

💬 DEPUTY SPEAKER: Keep going until we stop you.

[Audio failure] issues, and I know the honourable member Mr Macindoe would like me to talk at length, and I would like to respond to many of the things that he raised, but, of course, that won’t be possible. I know that some members have claimed that this bill is somehow covering for a lack of authority from the period from the original lockdown, and that is not correct. We’ve had a debate about the legal professional privilege and whether that can be waived by the Opposition, and I’ll just make this point: it is not for members of the Opposition, nor any member of this House, to claim the authority of the members of our judiciary. They are the ones who, once this House has passed a law, determine what the law means and how it applies. That is their job. Our job is to pass law, and no member should be acting in a way that contravenes that relationship of comity between these two branches of Government.

Members have claimed that there should be greater consultation with them, or at least with the Leader of the Opposition. So I’ve noted all those sorts of aspects. I note, also, the leader of the ACT Party, David Seymour, who’s expressed great concern about the fact that the powers in this bill will allow an undue curtailment of rights, particularly those rights that are adumbrated in the New Zealand Bill of Rights Act, and I draw that member’s attention, and indeed the House’s attention, to clause 4 of the bill, which sets out the purpose.

This bill is about a response to COVID-19, that vicious and incredibly virulent and contagious virus that has afflicted the world. The thing about that virus is we don’t fully know all the characteristics of it. We know that it is very contagious. We know that it can take up to 14 days to incubate in an individual, and there’s some scientific suggestion now that that may, in fact, be longer. If you look at the people, the new cases that are emerging now in New Zealand, some of those recent cases have returned negative tests, and, in fact, I understand, at least in one case, two negative tests have been returned and yet subsequently the person was diagnosed with the virus. We’re seeing stories out of the United States now that children who have contracted COVID-19 are now experiencing the symptoms of toxic shock. This is a virus that can have an extraordinary impact very quickly on the community and particularly on vulnerable members of the community. So it is right that we clarify that we have the power to deal with it as we move down the levels and give ourselves the power to respond in a more nuanced sort of way and a more agile sort of way where it might crop up.

The powers in the Health Act 1956, a piece of legislation promulgated at the time of Sid Holland, as I reminded the House last night, is very crude and very blunt, and extraordinary powers are given to pretty much shut down anything. It is important—as we move out of the most contagious and high-risk period that we had from the end of March and as we move down the alert levels and are able to respond effectively to the risks as they are now—that we have a set of powers that reflects that, that gives the Minister of Health and, where necessary, the Director-General of Health the ability to respond, whether on a national level or at a local level. What we don’t want to do is to repeat the experiences of those countries that only weeks ago were being lauded internationally for their response and performance in controlling and containing this virus but are now having to go back the other way—countries like Singapore and Taiwan and, indeed, some of the Nordic countries, too, who were held up as the example—because the reality is we still don’t know the true characteristics of this virus and we must have the ability to respond.

No one, no member of this House, at whatever time they’re sitting on whatever side of the House, ever wants this House to be passing legislation that wholesale curtails the freedom of citizens in this country and removes their basic civil rights—those contained in the New Zealand Bill of Rights Act. But also what New Zealanders expect this House to do when confronted with the emergency that we have had and will continue to have with COVID-19 is to take responsible and proportionate action to make sure that we’re not putting lives at risk and public health at risk. That’s what this bill does.

I want to congratulate the Minister responsible, the Attorney-General, who has shepherded this bill through the House in his responsive approach to members opposite who have raised concerns and the changes that he has agreed to, now reflected in the bill as it is before the House in this third reading, to create a piece of legislation that I think is not only responsive but also proportionate and that is fair. It is a bill that gives powers in the special New Zealand context that we have: a police force that is more responsive and diverse than it ever has been, that has a demonstrated track record of following its philosophy of educate, encourage, and the last thing they do is enforce, but they take an approach that is about taking people with them.

I think the House has acknowledged that the way we as a country have managed our response to COVID-19 has been in a way that has taken people with us. There is no such thing as an economy built on a status of public health where too many people find their health at risk, and they just don’t know with certainty what might happen. It’s actually in the economic interests of New Zealand that we have a regime as represented in this bill that allows us to respond effectively, efficaciously, properly, and proportionately so that we can continue the long, arduous task, along with the rest of the world, of eliminating this virus and getting our lives back to normal. That is an objective we all have. Hopefully, it’s not a dream we have, because, hopefully, with effective management and acquitting the powers that are contained in this bill properly in the weeks and months to follow, we will get to that point. We all want to get to that point, and the role of this House is to make sure, and the role of the House will continue to be, under this legislation, of the ability to scrutinise what is happening, bring the orders back—whether that’s the Regulations Review Committee or the whole House—to look closely at what this Government is doing.

I commend the bill to the House.

Thank you, Mr Speaker. I’d like to thank the Minister of Justice for the comments that he made at the beginning of his speech and also to acknowledge that I do agree with some of the other sentiments that he’s just expressed. But I have to say to him that judging by the deluge of emails that I have received—text messages, phone calls to my electorate office, posts on social media, and so on—I believe that the Government has badly misjudged public sentiment on this particular issue. Unfortunately, New Zealanders have gone from feeling valued to feeling patronised. They’ve gone from feeling trusted to feeling that they’re being treated like naughty children who can’t be trusted, and they’ve gone from feeling that we’ve been pulling together as a team of 5 million to feeling that their reward is a chilling and unjustified attack on our civil liberties and our religious freedom.

This process for this bill has been unjustified, undemocratic, and, therefore, frankly, dangerous, considering how serious the issue is. The most significant constraints on our freedoms, outside of a state of emergency, are being enacted under urgency without calling for submissions, with limited and mostly fawning media coverage, and with no select committee scrutiny. This bill should have gone to a select committee, even if only for a very short period of time, because we should have been reaching out to the public, to legal academics, to practitioners, and to other commentators, who all would have been able to make valid points to improve this bill.

So I want to quote, if I may, from one email that was sent by a lawyer to the Attorney-General in the early hours of this morning. It’s in the public domain because he copied it to all MPs. If I could, I’ll just cherry-pick and try to pick out about three paragraphs. He made the point that in one of the speeches the Attorney-General was making in the House last night, he was looking around and asking officials for advice on whether future executive orders would be made under the current section 70 or under the new law.

He went on to write: “You are the Attorney-General of New Zealand. Who is running this show? First, as Attorney-General, you don’t know any warrantless search powers in New Zealand, despite trying to justify the proposed law by comparison to powers you do not know. Next, you do not know which public health power is intended to be used in the future, which begs the question: why are you using urgency to pass the most Draconian legislation for 88 years? The bill seeks to put virtually unlimited and unchallengeable power to control the liberty of an entire population into the hands of one human being—does that sound like another type of society you can think on?”

He went on to write: “The bill does not provide a general right of appeal, and the majority of the House blindly have the Prime Minister’s back. Most people do not have the wherewithal to take judicial review proceedings. And, as the Hon Michael Woodhouse points out, the overbroad purpose of prevention adds significant difficulty in challenging an order.”

Some of his concluding remarks were: “Moreover, how can this bill be something done by ambush under urgency? As Nicola Willis said, we have had seven weeks of restrictions, so, surely, the legislative basis for moving to level 2 should have been considered and tabled before late on Monday of this week in order to allow a democratic process. That is not democracy; that is a circus. It is shameful. This is the most Draconian piece of proposed legislation ever seen in this country, at least since …”—and he quoted a depression-era Act of 1932—“This is a Government that was asleep in allowing, indeed, encouraging, the importation of the virus by telling people to rush home to avoid self-isolation. Months after foreseeable risks, this Government continues to make panicked reactions that are destroying individual lives and livelihoods and now democracy itself.”

So I thank that gentleman for his detailed and considered email. I hope that following Government speakers will answer some of the questions that he raised in it and respond to the concerns—and, as I say, I have only been able to highlight a few of them.

Let me pick up again on the point that the Minister of Justice was making: all New Zealanders wish to continue to lock in the gains that we have achieved together during the COVID-19 crisis. We’ve all been looking to minimise the risk of further importations or community transmission of this disease. That has never been in dispute, and it isn’t now. It’s why there was such unity and firm resolve in this House when we voted to suspend at the end of March and place our country under lockdown.

Public support for those initiatives has been evident in neighbourhoods around the country where physical distancing has been observed and people have worked from home wherever possible, while essential workers have continued performing their vital roles under stringent rules and often challenging circumstances, and I’m sure we thank them all. We owe a huge debt of gratitude to everyone in our team of 5 million who’s assisted us to reach the point where we can now move to level 2 tonight—not a moment too soon.

The Government has repeatedly made its expectations clear of all of us throughout the period since the crisis began. The Prime Minister repeated her expectations—albeit, not all that clearly at times—when she announced the decision to move to level 2, during her media conference in The Beehive theatrette on Monday afternoon.

But there are clear expectations from the public that the level 2 regulations will be justified, reasonable, and necessary. As I stressed in my previous speeches, and so have many of my colleagues, the cruel and inexplicable constraints on religious worship, tangihanga, weddings, funerals, and so on, are anything but reasonable. New Zealanders are distraught that the Government has refused to make the changes despite being offered the opportunity in some Supplementary Order Papers today. For that reason alone, we should be cautious in proceeding with this legislation and alarmed that it’s had such a truncated process under urgency.

Last night, Kiri Allan called me out, I think, for comments that I had made about the urgency process. So I want to point out that the Attorney-General wrote to me and put through a courteous phone call at 5 o’clock on Monday evening, but he wanted a response by 10 o’clock the next morning. Well, I don’t know any time that a caucus—particularly when flights are not operating and members are in their electorates the length and breadth of this country—could possibly meet to have a considered approach to a bill that they haven’t seen—and the bill wasn’t available—and have a response in by 10 o’clock the next morning. So I say to Kiri Allan that her comments last night were disingenuous, they were wrong, and she should not purport to suggest that this was just urgency as we know it. It was not—it could not be. No party caucus is able to consider its position under those circumstances. So that’s why I say it’s been a very poor process.

Some laws do need to be considered and enacted at speed. No one denies that. We’ve done it, and all previous Governments have done it. But this Government has had weeks since we went into the lockdown to get its arrangements for level 2 under control, clearly articulated, understood by members of the public, and to have taken the time—albeit with a truncated select committee process—to pass such a bill, if needed, through the Parliament.

Yesterday morning, we requested a briefing from the Attorney-General and some of his officials—and I acknowledge that we received that, although the Attorney-General wasn’t able to participate in it, and so the officials weren’t able to engage in the more political aspects of that discussion. So it was of some value, but only of limited value.

Let me just return to the point that I made in my first speech, because it’s all about the whole purpose of this bill. The Attorney-General was right at that point to highlight the fact that for our economic and social prosperity, we need to go to level 2. Livelihoods have been put at risk. Jobs have been lost. Many people have gone on to benefits. Many businesses have gone under, and many more, sadly, will in the weeks and months ahead. We all collectively share grave concern about that. We all collectively wish, and need, to see our economy get strengthened, get back on track, for businesses to have the confidence to take on staff, for investors to have the confidence to invest, and so forth—particularly for industries such as tourism.

But a move to level 2 was never dependent on the enactment of this bill. Our civil liberties have been put at risk in ways that cannot be justified and that, in weeks and months ahead, I’m sure, will be shown not to have been justified and that it was too high a price to pay.

In fighting COVID-19, New Zealand went hard and we went early, and we are now enjoying the success of that effort. We shut our country down far sooner than just about any other country in the world, when our case numbers were still very, very low. The result of that is that we not only flattened the curve; we squashed it. The last thing New Zealanders want to see now, as we come out of the other side of a very harsh seven weeks, is to see that curve tip back up in a dramatic fashion. That is what we are working to stop. Let’s be very clear about that. The Government on this side of the House does not want to see the enormous sacrifice that New Zealanders have made over this last seven weeks be in a vain. We want to lock in the gains that we have made and ensure that COVID-19 cannot get a foothold.

We have seen in the House in the last 24 hours some passionate speeches about civil liberties, some passionate speeches about good parliamentary process, and they’ve been very, very well made. They’ve been very good points—very legitimate points. As a parliamentarian, I agree with many of the points that have been made by members opposite.

COVID-19 respects none of those things. The reality is this virus will grab a foothold wherever it can. It does not respect civil liberties. It does not respect something as sacred as a funeral. If someone goes to a funeral who has COVID-19 and there are other people at that funeral who are in high-risk categories and that virus is spread, there could be more deaths from that funeral. That would lead to greater tragedy for all those involved. I acknowledge funerals are a tragic time. They are a time when we come together to comfort the grieving. But COVID-19 doesn’t respect that. It simply doesn’t respect it. We as a country have to stick together by staying apart. That is the reality. We do not want COVID-19 to take off in New Zealand, given the success of the sacrifices that we have made so far.

Now, the Opposition asked why we can’t have level 2 under the existing laws, and I think the Attorney-General has pointed out that level 2, under our existing legal framework, would potentially be harsher than level 2 under this law. This law actually allows for more moderate action under level 2 than could be taken under the existing law. So this law is actually about making sure that we can get New Zealand moving again, we can get our economy moving again, we can get people back to work, but we can keep New Zealanders safe in the meantime.

No one in this House should feel comfortable curtailing civil liberties—curtailing other things that New Zealanders in normal times would take for granted. I did not feel comfortable sitting on that side of the House when Gerry Brownlee brought a bill to the House that curtailed the civil liberties of Cantabrians, that confiscated their property rights, in urgency after the Christchurch earthquakes, but it was the right thing to do. It was an extraordinary set of circumstances, and Parliament needed to take extraordinary action in those cases.

Gerry Brownlee did the right thing in bringing that legislation to the House. It did make us all feel uncomfortable, and there was fiery debate at the time. I think—and I do want to say this; it probably wasn’t said to Gerry Brownlee at the time very much—he was placed in an impossible situation where no one was going to be happy with his response, and I actually think he did pretty well on balance overall of managing that immediate aftermath of the Christchurch earthquakes. It did mean that Parliament had to make some tough decisions to back the actions that he had to take, that ultimately curtailed people’s liberties, potentially took away their property rights, and left a whole lot of people feeling pretty unhappy.

No doubt about it, this legislation will leave some people feeling that their civil liberties have been curtailed and that they’re having to make further sacrifice. We need to do that because we do not want to see a greater tragedy in New Zealand. There are hundreds and hundreds of people dying every day in other countries who did not take the action that New Zealand has taken. They will suffer a much longer lockdown, and, if they come out of lockdown sooner, they will potentially see their curve explode, their health systems overrun, and thousands of people a day dying. That is something we’ve avoided in New Zealand, but, to keep avoiding it, we’ll have to stay vigilant. This legislation creates the right framework for us as a country to stay vigilant, and I support it.

No one is disputing that there is a need to stay vigilant. No one is disputing that we all need to continue following the public health advice that’s been so prevalent and so much driven into us or drilled into us over the last seven or eight weeks or longer and that, I think, need to be continually repeated messages. I found it fascinating that we have to tell some people that it’s a good idea in most circumstances to wash their hands, that we should also clean down hard surfaces—those basic sorts of things. Yep, we’ve got to keep doing it, and we’ve got to also maintain respectful distance for a time longer.

But the question is: when there is no pandemic notice and no epidemic notice, who’s making the decision that we continue to have these restrictions that can be now imposed on us, if this bill passes, by a simple notice, largely driven out of the Prime Minister’s office and enforceable—enforceable—with immediate fines and possibly court action? There doesn’t seem to me to be a regime where the whole team of 5 million or so is being asked to put all hands to the pump and get stuck into beating this thing. The worst of it is that the price that’s being paid for that win is going to be decades long for all New Zealanders, and it bothers me that as we have seen now, the benefit of New Zealanders’ largely voluntary response—I won’t get into the issue of legality; that’s got a bit more to play out yet—that I think would have been there regardless of what law was particularly called on because of the circumstances that existed seven weeks ago, the benefits from that are not now being realised to the extent that they should be.

It won’t be long before the number of New Zealanders losing their jobs every day and going on to the jobseeker benefit—and remember that that’s only a fraction of those who are losing their jobs. There are many more who don’t qualify for that who would have been in work. That number will very quickly escalate to a daily total bigger than the entire number of people infected by COVID-19 over the last seven weeks. Now, if you put that into some perspective, it gives an opportunity, I think, to show a lot more trust in New Zealanders, because the other thing that’s not being recognised here is that we are never going to be without it. Yes, there will be a vaccine at some point, and there will have to be other vaccines as there are mutations of this particular COVID virus, but it’s not imminent. So we are going to have to work out how we live with it. Are we going to be in a level 3 lockdown right to the duration—well, for the foreseeable future?

I want to congratulate the Government for accepting the limitation of 90 days or so before Parliament reaffirms any actions that are taken under this bill. That’s a good thing. The good thing about it is it will mean that the decision makers—in this case, one decision maker: the Prime Minister—will have to think about all the broad consequences of any decision that’s made. I want to acknowledge the Government for deciding that the enforcement officers couldn’t be just anybody plucked off the street, given a badge, as it were, and told to go around knocking on doors and using their powers if they thought it was reasonable in their view. There is now, as Crown employees or Crown appointees or Crown contractors, the opportunity for a great deal more control over that. It’s important. I think that’s good, but I’m disappointed that they could not have seen that it was an opportune time to include the whole of the Parliament in the consultation only—consultation only—on the section 11 decisions.

We did move a Supplementary Order Paper—it was defeated by the Government—that would have had the Prime Minister consulting—that means picking up the phone and talking to—the Leader of the Opposition when there was a proposal to introduce some section 11 amendments. Now, consultation doesn’t mean “have to do as they’re told” or “must listen to every little point” or “consider every little point”; it just means “have a discussion”. This Parliament has a party of 55 on this side of the House—the largest party in the House, the largest number of voters per party of any in the House—but the Government has decided no consultation on that basis, absolutely not. I think that’s a weakness in the bill that’s being passed now—one of many.

The other thing that bothers me a little bit about this is, under those section 11 notices—you start to analyse in your head—what are they going to be used for? One area we’ve seen, of course, is perhaps a continued restriction on church services, perhaps a continued restriction on the funerals. We’re told that the number is going to be 10 for those sort of activities—10 people. A week ago, it was going to be 100. It’s gone down to 10, and maybe in another week’s time, or two weeks’ time, it’ll be expanded out a little bit more. That’s one area that is of concern. The next, though, is in the hospitality area.

I do worry that some of the influences in this bill, particularly from the police, may be sort of an underlying desire to have some sort of local alcohol policy applied across the whole country. I would hate to see uniformed policemen going into bars, counting heads, checking times, measuring distances, and any other restriction that might go into one of these. That’s not good use of police time, because one thing we can be sure of is that while the country has been diverted over the last X number of weeks, worried about this COVID virus, crime has continued. It’s also a known fact that when you do have a disaster of this sort that you’re trying to deal with—a crisis or whatever you want to call it—criminals always find a way to benefit from it.

So I don’t want to see the police made some sort of pseudo crowd-control organisation. I think they came dangerously close to that with some of that footage that was shown of them shuffling people off Sumner Beach a few weeks ago. That was not a good look. And to tell New Zealanders who were quite peaceably going about things, keeping their distance, that it was OK for them to be running on a beach but not sitting there having a bottle of water was, I think, a bit of a disgrace. It sort of worries me that many of that type of element is captured here. I feel sorry for those police staff who were required to do that, because they’re New Zealanders as well. They think like the rest of us. They enjoy the freedoms that the rest of us enjoy, and they don’t particularly, I’m sure, like having to enforce stuff that in the end is a little bit on the petty side.

So we’re not supporting this bill, because there has to be a line in the sand that at least starts to say to New Zealanders there is some light at the end of the tunnel, that we are going to be able to work out how to live with this virus in the world in the future, because it will not be going away. It will not be totally eradicated, and it probably hasn’t even inflicted the greatest amount of damage that it will eventually because of many other countries in the world where we just don’t even know what’s going on.

So yep, we’ve got to do some things that protect our local economy, but part of it has to be trusting New Zealanders to accept that in this new environment, they’ve got to do what is best for them and what is best for the country. Unfortunately, this bill takes away that sort of element of trust, takes away the element of discussion with New Zealanders about what would be a good thing to do, and, most concerning of all, it concentrates all of the decision making in the hands of one person, the Prime Minister, without any requirement for what the Prime Minister must consider before deciding to gazette the circumstances that will lead to a section 11 notice.

Be clear: it’s the section 11 notices that will put the restrictions on church services, the restrictions on attendance at funerals, the restrictions on public gatherings, the restrictions on cafes, the restrictions on bars—and you could go on forever. But in the end, we need to lighten up a little bit, trust that New Zealanders have done a good job and will continue to, keep up those public health messages, and make sure that we are all aware that this is something we live with from this point on.

Thank you, Mr Speaker. I rise to make a short call to once again reaffirm that, despite all the conversation, the debate we’ve heard—and I acknowledge that there has been some serious and genuine debate and some serious and genuine expressions of some concerns from the Opposition—New Zealand First will be supporting this third reading of this bill.

I’ve got to say I am reminded at times like this of a view that I’ve long held, from 20-odd experiences in Parliament, that 90 percent of the people that come to this House come here for genuine reasons; they truly do want to make the lives of New Zealanders better. We may approach some of the problems from different philosophical views, and we may approach them from a party perspective, but, generally speaking, in all my time here, I stand by the view that 90 percent of the people that come here—probably 95 percent—come here and strive to do the very best they can for New Zealand. There are also times when one finds themselves here in Government, and other times when one finds themselves in Opposition. And there are times in Government when some hard calls have to be made, and one does reflect and wonder how one might approach that particular decision being made by the Government of the day if one was in Opposition.

And it’s interesting to hear—and it’s good to hear—Minister Hipkins say that, if he were in Opposition right now, he might well be expressing some of the same concerns. It’s good to hear him acknowledging the Hon Gerry Brownlee, who carried the torch for his Government through the difficult times of the two Christchurch earthquakes and through Kaikōura. My children and my grandchildren still live in Christchurch and have lived through all of that, and have noted that it is tough being in Government at times. There are decisions that have to be made that don’t sit well with our norm—the way we normally would do things. COVID, as Minister Hipkins said, does not respect any of the norms, and we have to, as a nation, be proud of the fact that, at this point in time, we’ve taken some hard decisions. We’ve paid a massive price, and the price is still going to continue to be paid for a little bit longer yet—we know that—but we have smashed COVID. Let’s be clear about that: we’ve made massive gains. The danger is one that every corporal who becomes a section commander of an infantry section knows; that every second lieutenant who becomes a platoon commander knows; that every captain or every major who becomes a company commander or lieutenant-colonel who becomes a battalion commander knows, and knows well, and it is this: you are your most vulnerable at your time of victory, when you have taken the objective and you think you’ve won. That’s when an astute enemy knows you’re weak. We’re at that point. We’re at that point right now: where a good decision or a bad decision can undo everything in the blink of an eye.

None of us likes what’s happening. I’ve had to deal with people through my electorate office who have lost loved ones. Do I like the fact that we’ve imposed these restrictions on them? No, I hate it. It cuts. If it were one of my family, how would I feel? No one likes some of these restrictions that we’re now going to have to put in place through this piece of legislation, but it’s better to have a ball-peen hammer to deal with the challenges than to be exercising the sledgehammer that a state of emergency would have us do.

On balance, I want to recognise and pay tribute to the Opposition for doing their job, but this is the right decision. This is what we need to do. If we come out of this harder and faster and moving quickly as we re-establish our businesses, re-establish some norms in our lives, and are able to hold memorial services for our loved ones that we have lost, not necessarily through COVID—I’ve got a string of veterans, and, every day on Facebook, I see another veteran has died, every day; very often two or three. It pains me to know that all their mates will not be able to attend those funerals. There will be no guards of honour, there will be no gun carriage, there will be no gathering at the RSA after. It pains me that that is the reality we are having to deal with, and we will pick these things up with memorial services, in time, in our own little ways. My heart goes out, but this is the right thing to do. New Zealand First will support the third reading of this bill.

Thank you, Mr Speaker. I rise in continued opposition to this bill. Let’s make no mistake: the powers within this bill give the Government—and that’s the executive Government, not its agencies—enormous scope to curtail the civil liberties of New Zealanders under any conditions related to COVID equal to what they have seen over the last seven weeks. And now, as we are debating in the third reading, we still have a situation where the bill that is actually before Parliament and will soon be voted on is not what was put on the tin by the Government when it introduced it. The public have a right to rely on the statements of Government and its Ministers when they say they’re doing something for a purpose, but then they discover that the purpose is actually not that which was articulated.

We were told—the public were told—when this bill was introduced, that this was about being able to set compliance conditions and manage enforcement in level 2. In fact, it was stated we had to do this to get to level 2. Now, that is actually not factually correct, and it’s not absolutely necessary. We were in level 2 a number of weeks ago. These powers weren’t available then. We did it then. We could certainly do it again. But we were told that it was needed for level 2 and beyond, which is level 1, but we’ve learnt as we’ve gone through this extremely shortened process under urgency that the provisions in this bill and the powers it unlocks are also available should we return to either level 3 or level 4. That is despite the fact that we already have a legal framework for dealing with this pandemic under level 3 and level 4 risk profiles. They include the Epidemic Preparedness Act, the Health Act, and the Civil Defence Emergency Management Act (CDEM Act).

We’ve been told by this Government, and the Attorney-General in public said, that there was no enforcement gap under the lockdown. So there’s no gap in the powers under the existing framework for level 3 or 4 conditions, so there’s no reason why level 3 or 4 should be included within the provisions for this suite of capability and powers to deal with level 2 or level 1. So I sought to test that through the process and challenge the Attorney-General, the Minister in charge of the bill, on why it was the case that these powers were in some way different for the ordinary New Zealander. I’m not saying that the wording is exactly the same. I’m not saying that every provision in the Health Act or CDEM Act are mirrored in this. But for the ordinary New Zealander, for them, lockdown meant the Government could tell them exactly what they could and couldn’t do, when they could go out of their homes, and for what purpose; that if they could work from home—oh, if they could work at all—they would have to work from home; that if they did go outside for exercise, there were conditions around what that exercise could be, how far away from their home it could be, under which conditions they could drive there; what businesses could open and under what conditions they could open; and what businesses the public could or couldn’t access.

We are left now with the position of a suite of powers which mirror the ability to do that level of impingement on civil liberties. As I say, they may not be exactly the same as the powers in the existing legislation, the Health Act and CDEM Act, but for the common New Zealander who’s experienced lockdown for now seven weeks, or just about, the powers in this bill enable the same level of impingement on their rights. So I challenged the Minister on not what was different; what was materially different, or what was constraining powers. He started off by saying, actually, this is more constrained because for warrantless entry on to premises the constable will have to report on it. Well, actually, that’s a good thing. But there’s no reason why that provision couldn’t have been an amendment to the Health Act and the CDEM Act, and actually should be, because it’s probably a good idea under level 3 and 4. On its own it is not a reason to have a new legal framework and powers that include the ability to use it under level 3 and 4.

Then the Minister said, “Oh, it’s actually needed because this has got an ability to control the basis under which businesses can open and operate.” Well, we’re still under level 3 at the moment, so I refer the Government back to lockdown. During this whole process, the Government has decided what businesses can and can’t open; the nature of how customers can enter those premises, such as supermarkets, which have limited numbers, or dairies, which have one in and one out; why dairies can open but butchers can’t; and how under level 3 a business could reopen as long as it was contactless ordering and either delivery or pickup.

So the Government’s either saying that it didn’t have the lawful authority to do that under the pre-existing framework so it’s necessary to be in this new bill, in which case that opens one large can of worms, or, if it claims it did have the lawful authority to do that over the last seven weeks, then it is not necessary for that part of the provision to be in this new bill. To the extent where it isn’t necessary but may be desirable, I go back to the point that they could have made that amendment into the Health Act, possibly into the CDEM Act, and, to the extent they needed a separate bill, the separate bill could have been, and should have been, limited to alert levels 1 and 2, which is what the Government actually said when it was introduced.

So then the Minister said, “No, it’s got further constraint on the powers, because Parliament will have to confirm an order made under section 11, and, if it doesn’t confirm it, that is revoked.” Well, the confirmable instrument is a very important part of our constitutional protections. And, ordinarily, it’s used for matters that are expected to persist for some time longer than a single order under this bill and particularly not in areas which are so severe in their potential curtailment of civil liberties.

So the point more than that, though, that I would make about the bill, as it may shortly be enacted, is that Parliament may not be able to make a determination on that confirmation for up to 60 days after the Government’s given itself the power to do things. What is more, there’s an explicit provision that says, if Parliament doesn’t confirm it—doesn’t confirm the order and therefore it is revoked—any action taken under it is still valid. So if Parliament says the order was wrong and shouldn’t have been done, there is no remedy for the persons affected by that order for the period until Parliament makes that decision. But if it was held, none the less, that such notices should be confirmable instruments, then, again, it goes to my point that for level 3 and 4, which are already dealt with under an existing legal framework which includes the Health Act and the CDEM Act, that amendment should have been made to those Acts and that this bill should have been limited to alert levels 2 and 1, which is precisely what the Government said it was for when they introduced it.

We are debating a bill, and, if the numbers stay the same—unless the Greens suddenly reawaken and rediscover their passion for civil liberties or New Zealand First discover that they truly do believe in the common New Zealand bloke and blokess—then this thing will pass. And it is going to pass in a way that allows the executive Government to do things to New Zealanders that they haven’t been able to do to date, and they were sold on it being something else.

I want to touch upon a part of the debate that didn’t rage—it was discussed—about who it should be that issues these orders and has the power. And we were told that some legal academics think it should be the Government because it’s accountable democracy—people can vote them out. Ordinarily, I wouldn’t disagree with that, but in the area where you are fundamentally locking people down, where their liberties are constrained so much, it should be the Government that brings the bill, Parliament decides whether or not it can be used, but the execution of those powers should be at arm’s length from political manipulation. It’s actually why it’s right under the current framework that is the Director-General of Health under the Health Act and the Director of Civil Defence Emergency Management under the CDEM Act, because it takes away the risk or imputation that the powers are being used with some political agenda in mind. Flipping that over to be the Minister of Health will simply reduce confidence within the public that there won’t be any political machinations or ideas or agendas in any decisions that are made under this.

Lastly, I’ll just briefly touch on the enforcement officers piece, which could have allowed almost anyone, such as the community checkpoint operators, to be given a clipboard and suddenly make all sorts of enforcement decisions. I’m a little concerned about the language that remains, which is “engaged by the Crown”. I didn’t get the opportunity in the committee of the whole House, but I just worry that perhaps, if a group received Government funding for mental or physical wellbeing, they could be considered to be engaged by the Crown. We do continue to oppose this bill.

The Greens are cautiously supporting and will be monitoring this, the COVID-19 Public Health Response Bill. What we are very clear about is that every life matters, no matter what age, no matter what community, and no matter what background or experience you have had, and that has been the driving force behind the public health collective community approach in the way that the Government has operated. That very strategy is in fact what has also helped to minimise the impact of the very communities who stand to be harshly impacted on the most—those with the least resource, those with the least support, those whose immunities are compromised, and those with long-term historical situations of being undermined by the current systemic biases in our health system. That is why the Greens have continually supported the overall approach of this Government in putting the public health and safety and wellbeing of everybody first, unlike many other countries and many other approaches, which have deemed some lives less important than others—some lives less valuable than others.

That is the starting point of why we are looking to ensure that there is then a clear set of rules and a legal framework to be sure about what our police and what our ministries and agencies can actually do to uphold that approach. Not having a clear legal framework and not having clear guidelines will also negatively impact on the very communities that the Greens—that I—have long been standing up for—the very communities who have the least power and resource and networks and lobbying power to be able to have a strong influence in this very House of Representatives that has long been historically putting particular groups of people and communities at a disadvantage. We do need clear legal frameworks and the architecture behind what our agencies—our State agencies and our Government agencies—do to ensure the safety and wellbeing of all of our people. That is our starting point.

Yes, we must have every caution over the way that our civil liberties are being disrupted, and, again, we have long been a clear voice in that instance, and we will continue to monitor with caution and be wary of the disruption of those very civil liberties, of the very way that we uphold to be able to live and move and breathe in this country. That is why—that is why—we are being very clear and worked really hard to put in place further checks and improvements on the disruption of those civil liberties.

But let me be also clear: this is a global pandemic the likes of which I have not seen in my lifetime in this House, the likes of which the Green Party has not had to deal with in our history. Those are extra considerations. Those are massive challenges that require, yes, a political balancing of disrupting our civil liberties. We understand why there has been the need—the safety-first, the collective wellbeing - first, need to disrupt those civil liberties.

We also understand the validly held, the passionately held, worries that are coming from different communities right now to the ongoing disruption of those very liberties. I do again want to acknowledge the valid concerns of Māori, low-income, and brown communities, who have long been at the unfortunate hand of the systemic racism and bias within our police and justice system. That much no longer even needs debating. It is very well-established, including with the acknowledgment of the police themselves, who I continue to look forward to working with as they seek to correct that injustice—that colonial, historical, and present-day injustice that they themselves acknowledge needs turning around. It is in that context which we have received fair outcry against the way that this bill has seemed to continue to run over those civil liberties of those communities in that context.

We need to be absolutely clear that these broad-ranging powers will not continue to exacerbate those very inequalities that have always existed—that we will not see police or enforcement officers busting into my Manurewa and South Auckland communities as opposed to those house parties in Remuera. We will need to all be very clear that this is not what this bill can continue to support. We are all on record to make sure that we do not continue to see those injustices applied the way that they have been for such a long time.

I wanted to go through very quickly some of the checks on warrantless entry powers that we have worked hard to be able to stand here and keep supporting the public collective—

I apologise for interrupting the member, but it is coming up to 1 o’clock. The Government has indicated that it does not wish to continue urgency.

Debate interrupted.

The House adjourned at 12.59 p.m. (Wednesday)