Standing Orders — Sessional

I move, That the following rules be adopted as a sessional order:

COVID-19 PUBLIC HEALTH RESPONSE ACT 2020

1 Interpretation

In these rules,—

the Act is the COVID-19 Public Health Response Act 2020

section 11 order is an order made under s 11 of the Act.

2 Examination of section 11 order

(1) The Regulations Review Committee must examine each section 11 order and report to the House no later than 12 working days after the day on which the section 11 order was presented to the House, unless the Business Committee determines otherwise.

(2) No motion under section 16 of the Act relating to a section 11 order may be moved until after the earlier of the following:

(a) the presentation of the Regulations Review Committee’s report on its examination of that section 11 order:

(b) the day fixed for the presentation of the Regulations Review Committee’s report on its examination of that section 11 order.

(3) If the Regulations Review Committee recommends that a section 11 order be amended, then paragraphs (1) and (2) do not apply to an amendment to that order, or a further section 11 order, that is made only for the purpose of incorporating the committee’s recommendations.

(4) Standing Order 322 does not apply to a notice of motion under section 16 of the Act relating to a section 11 order.

3 Disallowance or amendment of section 11 order

(1) This rule applies to a notice of motion to disallow or amend a section 11 order only if that notice of motion is given by a member who, at the time the notice of motion is given, is a member of the Regulations Review Committee.

(2) After a notice of motion to disallow or amend a section 11 order is given,—

(a) that notice of motion must be dealt with by the House no later than the sixth sitting day after the day on which the notice of motion is given:

(b) if that notice of motion has not been dealt with by the House within five sitting days, it is set down on the Order Paper for the next sitting day as the first item of business after general business.

(3) If more than one notice of motion to disallow or amend a section 11 order is available for consideration on a sitting day, then those notices of motion are set down as a single order of the day and are debatable together, with their questions put separately.

(4) Standing Orders 67, 68, 71, 72, 76, 100, 321, and 323 are read accordingly.

4 Repeal or continuation of Act

No notice of motion under section 3 of the Act (relating to the repeal or continuation of the Act) may be moved until after the earlier of the following:

(a) the presentation of the Finance and Expenditure Committee’s report on the inquiry into the operation of the Act:

(b) the day fixed for the presentation of the Finance and Expenditure Committee’s report on the inquiry into the operation of the Act.

On 13 May, the House passed the COVID-19 Public Health Response Act, which gives the Government some wide-ranging powers to react quickly to suppress COVID-19. The purpose of this motion is to ensure that the orders made under section 11 of that Act receive the appropriate parliamentary scrutiny. These orders can be made by the Minister of Health or the Director-General of Health. They can control or limit travel, social distancing, social gatherings, isolation, quarantine, contact tracing, and other actions that have become very familiar to New Zealanders as we have been engaged in this fight against COVID-19. These powers are exceptional, and it’s important that processes are put in place to allow Parliament to exercise its responsibility to scrutinise the executive by putting in place a sessional order that describes the process that will take place as Parliament does that.

Section 14 of the Act provides that any section 11 order is revoked if it’s not approved by a motion of the House within a certain period. It’s proposed that each section 11 order must be examined by the Regulations Review Committee no later than 12 working days after it’s been presented to the House. This is a significantly shorter time frame than the one that members of the House will be used to as part of the regular regulations review process. It specifies that no motion approving an order may be moved until the Regulations Review Committee has reported back to the House. This is a much quicker process than laid down in the Standing Orders for an affirmative resolution procedure. For this reason, the sessional order will disapply Standing Order 322.

The motion also proposes a procedure to disallow or amend a section 11 order that’s considerably stronger than that that is currently laid down in the Standing Orders. It proposes that any notice of motion lodged by a member of the Regulations Review Committee to disallow or amend a section 11 order must be dealt with by the House no later than the sixth sitting day after it is lodged—so, in reality, within two sitting weeks. This is considerably shorter than the 21 sitting days specified as the period after which a regulation lapses if it’s not dealt with by the House. Section 3 of the Act specifies that the Act is repealed unless it’s continued by a resolution of the House within 90 days of its commencement. Rule 4 of the sessional order states that no motion relating to the continuation or repeal of the Act may be moved until the Finance and Expenditure Committee has reported on its inquiry into the operation of the Act.

This recognises that the urgent circumstances of the global spread of COVID-19 meant that a faster than normal process to pass the bill was necessary, but that the Finance and Expenditure Committee’s examination of the operation of the Act is a way of giving the Act scrutiny that it wasn’t able to receive before it was initially passed by the House. So this provision ensures that the House makes any decision about continuing the Act in the knowledge of the committee’s findings.

Our team of 5 million has done a magnificent job in fighting COVID-19. The provisions of the COVID-19 Public Health Response Act have played a very important role in that battle. We’re privileged to be back to living a life that is a lot closer to normal than the vast majority of countries around the world, and all New Zealanders have played a part in helping us to get to that point. But the global threat that’s posed by the virus remains with us. It remains active around the rest of the world, and the powers given by the Act have to remain in place for the time being. So it’s important that this House has the ability to monitor and to scrutinise those powers for as long as that is the case. That is what this resolution will achieve.

Thank you, Mr Speaker. It’s my pleasure to take a brief call to confirm that the National Opposition will be supporting this motion. I just want to make three or four points.

The first is to actually commend the work of the Regulations Review Committee, because it’s one of those ubiquitous organisations within Parliament that nevertheless does an extremely important job. Those who are appointed to that standing committee often get a bit teased—

💬 Hon Tim Macindoe: Pinnacle of my parliamentary career!

—by their colleagues, certainly on my side of the House. That’s right. Mr Macindoe says it was the highlight of his career. He says it flippantly, but I bet there were things that were done pretty much behind the scenes that nevertheless were very good from a scrutiny perspective.

I would remind the House of the excellent opinion and letter that was written during the lockdown about the questions that were rightly asked about the section 70 notices under the Health Act that were issued and the question of both process and whether they were ultra vires, effectively. Now, that triggered an interesting sequence of events in the Epidemic Response Committee that doesn’t bear relitigating here. But, nevertheless, I found that a very thoughtful and important contribution to our thinking about the appropriate response which all parties wanted to support. But, as I have said in this House a couple of times, the rigour that we put to the executive’s regulation and lawmaking power is most important in these times of challenge and crisis, as they are in any other time.

The second point I would like to make is that of the time frame. As the Hon Chris Hipkins has pointed out, these are departures from the current Standing Orders for the reporting back, but they are appropriate. We have had very good examples of where a quite detailed scrutiny of things passed necessarily quickly can still nevertheless be done, and I have every confidence that the Regulations Review Committee will do that.

The third thing I would like to actually ask the committee just to check in their examination of the orders that are made is that it has been brought to my attention that it is possible that a couple of the orders made under section 11 might not have been consistent with the notice period and manner that is set out in the primary legislation. Now, I haven’t had a chance to go and check the veracity of that. So, as is my way when I make comments like that—I caveat them appropriately that the source is reliable, but at this stage it’s an anecdote. But it does, I think, behove the committee to just have a quick check, a belt and braces check, that, for example, the order that was signed by the Minister of Health on Saturday—interestingly, on a Saturday in Dunedin, and that’s the nature of these things; it’s often necessarily a swift process—nevertheless met the requirements for gazetting and publication that are set out on the principal Act. With that, we’re very pleased to support the motion.

Motion agreed to.