Covid-19 Public Health Response ACT 2020 — Extension

I move, That, under section 3(2)(b) of the COVID-19 Public Health Response Act 2020, the relevant period is the period ending on either 1 December 2020 or the tenth sitting day following the first meeting of Parliament after the 2020 general election, whichever is the later, so that the Act continues in force until that time.

The COVID-19 Public Health Response Act provides the essential legal framework for New Zealand’s continuing response to the COVID-19 global pandemic. As members will be aware, it replaced for the purpose of the COVID pandemic the 1956 Health Act, and it was necessary because the powers under the Health Act, whilst appropriate for levels 3 and 4, didn’t give the nuance that is necessary in respect of level 2 and below, and also was of a formulation some decades old and didn’t have the accountabilities that one would expect in respect of those sorts of powers, even in respect of levels 3 and 4, should it—while none of us want this eventuality—ever be necessary to go back to levels 3 and 4.

The 1956 Health Act is predicated on quarantine and keeping people apart from each other rather than on finer controls, and once you get to level 2 and below, and you’re letting people go to work and to mingle and you’re left with things like restrictions on large gatherings, it doesn’t fit within the framing of the Health Act, which was predicated on more strict forms of quarantine. That’s why the COVID-19 Public Health Response Act was necessary. So the new Act, which we’re discussing the extension of, includes a sunset clause to give Parliament control of the regulation-making powers that are enabled by that Act, and Parliament agreed that this would have to be brought back to Parliament periodically in order for consideration to be given as to whether it should be extended. The motion proposes that this be extended to the later of those two dates in the motion to allow for the election and the putting together of—whoever it is—the Government selected by the people of New Zealand.

So the Act provides the legislative framework for the Government’s response to COVID-19, and it does provide a fit for purpose framework for responding to COVID19 at all alert levels. The Act is needed at alert level 1 as it provides the legal basis for the two orders that currently provide for measures needed to control the border, including testing, isolation, and quarantining, to minimise the risk of another outbreak of COVID-19 within New Zealand. The measures that are in these orders, currently, can only continue and need to be updated, and they can only be either continued or updated while the Act continues to be in force.

If the Act is not continued, then there will be a gap in measures that could be applied legally at alert levels 2 or lower, and the higher alert levels would also require, then, to be reverted to the Health Act 1956 framework, which doesn’t have the improvements included in this current Act, such as greater safeguards, the infringement regime, or the change of decision making to the Minister of Health, rather than the Director-General of Health. The ACT Party made valuable contributions in respect of that improvement in this COVID-19 Public Health Response Act, when it was passed a couple of months ago.

We’ve been at alert level 1 now for nearly two months, and the orders under this Act at the border have ensured that returning New Zealanders are in managed isolation or quarantine upon their return to New Zealand. The bespoke Act narrows the powers of the Crown compared with the powers that were available under the Health Act and the civil defence framework that we used for the first two months of the COVID response.

We all know that the pandemic continues to grow internationally and that this is not a time for complacency. There are currently 18.5 million cases of COVID-19 worldwide. When this Act was first passed three months ago, there were just over 4 million. This pandemic continues to increase apace. It’s global and we’re not out of the woods yet. We just need to look across the Tasman and see the risks that we face. This is a time for responsible Government, and it’s not the time to put things at risk through inappropriate politicking.

Without these powers, New Zealand would be at greater risk of community transmission that would necessitate a second lockdown costing millions, if not billions, of dollars of damage to the economy and many deaths. That’s why this House should all support the continuation of this Act. If some MPs do not, voters will rightly ask why those members support the risk that would then ensue of having a regime that would not be fit for purpose under the Health Act.

A select committee considered the Act after it was passed and found it was necessary, appropriate, and balanced. They did—

💬 Hon Michael Woodhouse: By majority.

—by majority—suggest that during health emergency responses that more enduring health emergency response legislation be developed to replace the outdated sections of the 1956 Health Act. That’s a worthy proposal, and it’s something for the next Government to consider, but they found that this legislation is appropriate.

I understand that the Opposition, again, stated at that select committee that they were upset that we didn’t take longer to pass this Act in May. They said the process should have been commenced earlier and that delays were occasioned by that delay. Even if they were right on that—and I don’t accept that—they should be now in a position to accept that this legislation is appropriate, and they should understand that any further delay in the passage of that Act or its extension would have meant greater health risks in New Zealand and larger social and economic costs.

It’s disappointing that some Opposition parties have participated in spreading baseless conspiracy theories about the Act. I think it’s appalling that some members of this House have asserted that the warrantless powers under level 2 and higher used under the COVID Act to break up mass gatherings are some grand taking of powers. That is wrong and has always been wrong, and it has been well described in this House.

It’s poor that some members of Parliament, outside of this place, continue to make those assertions, because they risk undermining the social consensus that lies behind voluntary compliance behind whatever words they are—and I see a member of the National Party go “Pah!” at that. It is absolutely correct that those warrantless powers are limited, essentially, to breaking up mass gatherings, and the idea that there aren’t other warrantless powers of entry that pre-existed—they were already in existence under the Health Act at the very time we debated this bill. They also exist under the Civil Defence Emergency Management Act, the Search and Surveillance Act, the Resource Management Act, the Building Act, the Land Transport Act, the Dog Control Act, the Hazardous Substances and New Organisms Act, the mental health Act, the Arms Act, the Oranga Tamariki Act, and the Immigration Act, and—

💬 Erica Stanford: So defensive.

No, I’m not being defensive. I’m actually describing this for the benefit of New Zealanders because there has been some appalling misrepresentation of that fact, which does no credit to those people that do it.

The most obvious example is that council officers have the ability to go and break up a noisy party and take a stereo. Surely, people can understand that with this circumstance, it can be necessary for the police to have the power to go and break up a party that would otherwise be putting at risk at different levels the ability of the country to control those events.

So I would hope that we have absolute unanimity and support of this motion. I hope that National has moved past this nonsense that they spouted when the Act was passed and will support this motion, because otherwise they’re in the same category as Jami-Lee Ross’ social media conspiracy party, and they do this country no favours at all.

I commend this motion to the House. It is necessary that this new framework continue in force until a new Government is able to be formed so that if—forbid—we do need to move up the levels again because we have another instance of community transmission, we need the finer powers that are authorised by the COVID-19 Public Health Response Act. I commend the motion to the House.

Well, that 10-minute speech from the Attorney-General summed up his character, I think, absolutely perfectly: pleasant, polite, and then, at the same time, railing on anybody that disagrees with him, calling anybody that doesn’t support that Act or this motion inappropriate politicking, saying that the public should rightly ask why members of this House do not support it if they don’t, and saying that they’re baseless conspiracy theories—all of those criticisms that we heard when this bill was being passed under urgency were all from a bunch of conspiracy theorists. Well, there must be hundreds and hundreds of thousands of them right around the country, because we heard from a lot of them, and they did not like what was being done to their personal freedoms and, not only that, the manner in which it was being done. Mr Parker calls that baseless conspiracy theories and says that it would be nonsense not to support him and his Government.

Now, months have passed since the Government deemed that the COVID-19 Public Health Response Act was necessary, and we are in a different time. We actually went to level 2 at that point and there were notices made under section 11 of the Act that did provide constraints on the freedoms of New Zealanders, and we’re now out of that time.

So, just as the Attorney-General has reminded the House and the public why this Act was necessary, I think it’s also appropriate to remind this House and the public why my party felt that this was executive overreach, inappropriate use of the powers of Government, and the wrong process. The lack of public involvement in this and the scandalous sidelining of the Epidemic Response Committee in favour of a committee with a majority of Labour members on it to review the Act literally 72 hours after the Act was passed—now, in 170 years of parliamentary democracy in New Zealand, that, as far as I can tell, has never occurred. Acts are reviewed. We often build review clauses into bills to ensure that there is an appropriate scrutiny, but that’s usually after they’ve gone through the appropriate scrutiny of a select committee process.

Now, the Epidemic Response Committee did consider two pieces of legislation in short order. I was a member—I chaired, actually, the bill submissions and the consideration of those bills. We reported back to the House within 10 days, and we made bills better as a consequence of that. We still don’t know, because the Attorney-General will not share the advice that he was given, that either section 70 of the Health Act was appropriate for levels 4 and 3, or that the COVID-19 Public Health Response Act was appropriate and necessary for levels 2 and 1. The Epidemic Response Committee had to go through the extraordinary step of, effectively, summonsing the advice, and the Attorney-General not only vetoed that but came to this House late one night and quietly passed a motion to kill off the Epidemic Response Committee, because that kind of pesky democracy thing was getting a bit inconvenient for him.

💬 Darroch Ball: Because the House had started sitting again.

Now, I want to—well, we did it in the House. So Darroch Ball says, “Well, the House was sitting, so it was OK to get rid of the very committee that should have been examining this bill.” Not only did the bill not go to it; we got rid of the committee, and I remind the member that the committee had not concluded its business. There was still much to do, otherwise, why not have any select committees, Mr Ball? I bet that would be good for Winston Peters and the New Zealand First Party: “Just get rid of all those pesky select committees because the public, they just ask annoying questions and make annoying comments about what the Government wants to do.” Well, that, Mr Ball, is called democracy—it’s called democracy.

Now, Mr Parker described this as an essential legal framework. I challenge the use of the term “essential”.

He talked about this Act replacing the 1956 Health Act. Actually, it doesn’t. The 1956 Health Act is still there, and my reading of the 1956 Act is that it could, even with some minor amendments, have satisfactorily addressed the situation that the Government found itself in as it was moving to level 2 or level 1. We don’t know what advice the Attorney-General got because he won’t release it, but I say to the Attorney-General—and he should know this better than anybody—something created in the 1950s doesn’t necessarily make it out of date. It has stood the test of time. It does need updating, and that’s a much, much larger body of work, but I’m yet to see any compelling advice that that legal framework was not sufficient to manage the situation that we had, and I think we need to remind ourselves what this Act gave the Government powers to do.

Mr Parker said it was limited, warrantless powers to break up mass gatherings. No, it wasn’t. It was a power to enable the police and authorised officers to go in the private homes of individuals in New Zealand and do a headcount.

💬 Darroch Ball: They can do that now.

No, they—only because of this Act, Mr Ball. They have no without-cause reason—a warrantless reason—to go into houses for any other purpose.

💬 Darroch Ball: They can do it now.

“They can do it now.”—well, the member needs to listen more carefully. If they have reasonable cause to suspect that a crime is being committed at that time, then they can. So what they’re saying is gathering in numbers greater than 10 is the same as attempted murder, arson, violent assaults—that’s what we want, do we? Do we want the police to be able to go into our houses and go, “One, two, three, four—11. You’re breaking the law.” Marae, the same. That’s what got the public so upset.

💬 Darroch Ball: What nonsense.

Yeah, OK—go out on the campaign trail, Mr Ball, and tell the New Zealand public they’re stupid, because that’s what your interjection is just saying.

You know what? I support the rule of law, but I also support the process of lawmaking. This has been an absolutely appalling, appalling process, and we still don’t know why it was necessary.

Section 11 powers were massive executive overreach, and then they told the public their views weren’t important enough, “But we’ll pay lip service to them after the Act has passed, only we won’t do that through the Epidemic Response Committee. We’ll give it to the Finance and Expenditure Committee.”—as if this is a finance issue. The only reason it went to that committee was because the Labour Party had a majority.

The Finance and Expenditure Committee was extremely busy. They were flat out getting a number of other things through, and yet—and I see Dr Deborah Russell over there. She probably was shaking her head when she heard that she had to take on that body of work, and she probably thought, “Well, hang on. Haven’t we got a perfectly good committee?”—a committee, incidentally, that through the lockdown and afterwards was credited worldwide as the exemplar of how representative democracy could continue through a pandemic. I remember Derek Cheng from the New Zealand Herald wrote that “If one watches question time, viewers would have a very jaundiced view of our parliamentary democracy. But if one watches the Epidemic Response Committee, faith could be restored because it was such a good process of examining dispassionately what the Government was doing and what could be done in an emergency.”

I went on a World Bank parliamentary global forum online in the early hours of Anzac Day, April 25. We had some excellent submissions from around the world about what parliamentarians were doing, and the biggest comments that were being made in the chat rooms that were the sidebar to the virtual conference were the concerns in modern democracies that the executive was putting aside the role of Parliament in making decisions, and this is exactly what happened here in New Zealand.

💬 Darroch Ball: Oh, that was National’s idea, was it?

Oh, dear, oh dear.

So we can’t support the motion. If we could not support the Act when it was passed and we were appalled by the process that was followed before, during, and after the Act’s passage, then it stands to reason that we stand with the public of New Zealand, who were not baseless conspiracy theorists. They were actually advocates of freedom and personal responsibility to act appropriately, without the long hand of the executive and its constabulary to reach into their houses without warrant to do a headcount. That alone is a reason not to support this Act. It’s certainly the reason why the National Party continues to oppose its extension.

Thank you, Mr Speaker. I didn’t come to the House with the view of taking a call today, but Minister Parker’s comments have spurred me into action. I’ll just take a short call, because I spoke in opposition to the original piece of legislation that was put forward. I made a number of comments, and I—as I often do—put my speech on my social media page. I didn’t post it; I just put it there. Within a couple of weeks, it had had 141,000 views, thousands of comments, and thousands of shares. There’s a reason for that, and it’s not because there is a minority of baseless conspiracy theorists out there; it’s because there is a huge number of very concerned New Zealanders.

The reason that Minister Parker came to the House today and was so very defensive about his position on this bill and had a good jab at us and a good attack—probably at me, in particular, because I made that speech and I had such a great reach; he probably watched it—was because he knows that he has a problem. He knows that he’s got a problem with his own Māori caucus. I’ve spoken to members of his Māori caucus when I’ve been walking around these halls, and they said to me themselves that this was the single biggest issue that was brought to their attention by their constituents in the whole of this Parliament.

Now, what does that tell this House? That tells this House that these guys have got a problem. The majority of New Zealanders believe that you have a right to privacy in your own home without the police being able to come in and do a headcount in case there’s 11 people at your kid’s birthday—which was the case that I pointed out in my first reading speech on this—because your neighbour is so terrified of COVID because this Government’s put everyone into a state of panic. There might be 11 people at a birthday party, 11 people at a lunch, or 12 people at some gathering, and the police can come in and do a headcount, and that is exactly what this law does. That is exactly why every member of the Māori caucus of the Labour Party has been lobbied on this for the last few months. They know it’s a big problem. They have told me themselves how big an issue this is, and that’s why those members are so very defensive. They come to the House today and try and explain it away as some conspiracy theory.

Well, actually, I think we need to give a little bit more respect to the people of this country—that they are allowed to have concerns over this bill. The concerns that they hold are well founded, because they know very well that these powers are likely to be abused, especially in certain communities—because they’ve experienced it in the past and they will experience it in the future—and they have every right to ask questions. It’s not anti-democratic. It’s not a conspiracy theory. That’s what we do in a democracy: we ask questions around parts of law that we think are a massive overreach and, in this State, are turning New Zealand into what I described in my speech as a police State.

You have the right to enjoy the freedom and privacy of your own home without the police coming in to conduct a search and a headcount based on the amount of people you may have in your house. I spoke to a number of police officers around this. I said to them, “In what circumstances would you go into someone’s home without a warrant?”, and they said, “Well, actually, we hardly ever do that, for good reason, because if we ever do, the judge always pulls us up and it hardly ever goes through.” They said that you’ve pretty much got to be chasing someone into that house with a gun. You can walk past someone’s house, see that there’s a pipe in the window, and you still wouldn’t go in without a warrant. They said, “We hardly ever do it.”

I remember very well in the House, when I gave my speech, we had the Labour members getting up and saying, “Oh well, you know, noise control officers have warrantless powers of entry.”—which is absolute rubbish. They don’t. They have warrantless powers of entries to the property, but not the house. But that was the rubbish that was spouted by the other side of the House.

This is a massive overreach. The Māori members of the Labour Party and people around New Zealand are correct when they think that this is a massive overreach. They are right to be asking questions, and it is absolutely despicable that the Minister would come down to the House and call them baseless conspiracies and say that these are all conspiracy theories. Well, actually, we have a little bit more respect for these people. We believe that they have the right to ask these questions, and we will put these questions in the House as well.

Like I say, 141,000 people who watched my video and the thousands of people who commented and the certain sectors of this community out there who are very worried about this bill have absolutely every right to be worried. We will stand up for them, which is what we are doing, and we continue to oppose this bill.