COVID-19 Public Health Response Act 2020 — Continuation

I move, That the COVID-19 Public Health Response Act 2020 is continued, and that the relevant period under section 3(2)(b) of that Act is the period ending on 16 April 2021.

This is the first of three motions that the House will deal with tonight relating to COVID-19. This one is a relatively simple one: it extends the COVID-19 Public Health Response Act through until 16 April next year. The COVID-19 Public Health Response Act was the subject of some quite wide-ranging and lively debate across the House when it was first passed into law. It creates new powers to allow the Government of the day to respond to COVID-19—in particular, it creates some lower level powers that wouldn’t be possible under the Health Act. When we’re dealing with more localised outbreaks, the existing provisions apply reasonably well in alert levels 3 and 4, but for the lower alert levels—around level 1 and level 2—where we need to put restrictions in place to contain a smaller outbreak or to have a lower level of intervention, this Act is a much more appropriate tool.

It also shifts the decision making from the Director-General of Health to a Minister—something that is better for the purposes of public and parliamentary accountability. If we did not extend the Act, the Act would expire just before Christmas. To give you an indication of what that would mean, it would mean that some of the orders that I have made, first as Minister of Health, and then as Minister for COVID-19 Response, would no longer apply—and that includes things like the protections put in place at our border in particular, and the requirements put in place around regularised testing of those who are most at risk. Those orders would no longer apply if the Act under which they were made was expired, so it’s important that we extend the Act.

The question is: why extend it to 16 April, rather than extending it for a shorter or a longer duration? Parliament will shortly debate something that will set in place some rules for how we deal with future extensions of the Act. In the future, when the Act is extended, the notice of motion to extend it will first go to a select committee, and there will be an ability for the select committee to have a bit of a public process—a hearings process—around whether or not the Act should be extended. Those rules are not currently in place, but later on tonight we will be putting those rules in place. So allowing for the Act to continue until 16 April means that we can ensure that when we next extend it we will be able to have a more transparent and accountable process, because the motion to extend it will go to a select committee. The 16th of April gives us several sitting blocks in the new year where we can bring that motion to the House, where it can be referred off to a select committee, and where it can then go through that process.

I think the Act is an important one. It is important that we continue to provide the powers necessary to ensure that we continue with our elimination approach to COVID19, and extending this Act will allow us to do that.

Thank you very much, Madam Speaker, and I thank the Minister for COVID-19 Response for those illuminating remarks. National will be opposing this motion because we opposed the initial public health response bill, which is now the Act, and we feel duty bound to oppose the continuation of the Act for that reason. We oppose it with the judicious remarks that we oppose the scope and the breadth of the legislation, albeit there are some very sensible measures, and I just want to make three very brief points in this call.

The first is that the history of this legislation, I have to say, is an untidy one for the Government. There are a few new members in the Chamber, and welcome to all and congratulations on your maiden speeches—but if you were here in the preceding Parliament, the 52nd Parliament, there was quite a bit of back and forth, it would be fair to say, about this legislation. We heard from the Government for quite a long period of time that the legal basis upon which the orders that were made by the then Minister of Health, David Clark, was totally fine, that there was no question. We heard the Attorney-General give fulsome public comments about how there was a wide-ranging legal background to the orders that were made and that people should have no concerns whatsoever about the legality of the various measures that were put in place, most of which the National Party supported actually—in fact, most of which the National Party supported before the Government did, by the way.

But the point remains—and it’s a fundamental one—that Government must act according to the law. That is what the rule of law means in New Zealand society. I’ve got to say, one thing that I was quite surprised by during the preceding months was that many people actually rejected that simple proposition. I had many people say to me, “What are you worried about? The Government’s done the right thing. Fantastic. They’ve done well.” And that is true as far as it goes. But the simple proposition that Government must act according to the law, which I would have thought was a non-controversial view, actually, it turns out it’s quite controversial. But that’s what the rule of law means. It means Government’s subject to the law, Government must act according to the law, and if the Government wants to act to a different standard of law, they’ve got to change the law.

In New Zealand, with our Parliament, it turns out the Government changing law is actually pretty easy, particularly in this Parliament. Because this Government’s got a majority, they do what they like. You know, Palmer called this Parliament the “fastest lawmaker in the West”, and he designed MMP to make sure it never happened again, and it turns out here we are again. So I hope that the Government doesn’t go back to the bad old days of the pre-1996 era and act like they can do what they like.

But that is a little bit what happened when it came to the COVID-19 Public Health Response Act the first time around. As National said—as the Opposition said—“We’re concerned about the legality.” And a guy called Mr Borrowdale actually thought the same thing. He took the Government to court and he won, and that surprised quite a few people. It didn’t surprise me, and it didn’t surprise Christopher Penk over here, the shadow Attorney-General. It didn’t surprise those who’ve studied public law, because there were very shaky legal foundations for the Government’s activities. So the history of this is very untidy and eventually the Government was forced to act after insisting for month after month that there was no necessity. So the history is an untidy one.

Secondly, we feel duty bound to oppose the continuation of the legislation, because of the powers given to the Government, particularly when it comes to warrantless searches, which is something that—the Government would say to you that we have that power in legislation currently and that is true. But it is very rare, very rarely exercised, and not to the same extent and breadth that this gives.

The third point is a plea to the Minister to take seriously the concerns in the Brian Roche and Heather Simpson report, because this legislation deals with orders in relation to testing at the border and around our maritime border and around our aircraft and around the way in which COVID can come into New Zealand. The Minister said himself publicly—and we agree—borders are our first line of defence against COVID. I understand that there is a very negative review as to the activities of the Ministry of Health. I encourage the Minister to release that report soon so that we can see for ourselves and so can the public. We will be opposing this with the caveat that there are some sensible things in the legislation. Thank you.

Thank you very much, Madam Speaker. I rise on behalf of ACT in support of this motion. I think it’s worth traversing a little bit of the history of how we got here. ACT supported the COVID-19 Public Health Response Act at the first and second readings of the legislation, and the reason is similar to what we’ve just heard from Chris Bishop: that we believe in the rule of law, and it was certainly welcome that, instead of the circumstances in which New Zealand found itself in the early days of the first lockdown, where we had total lawlessness, where we had a, shall we say kindly, maverick police commissioner attempting to scare New Zealanders with innuendo and no legal basis for the restrictions put on New Zealand’s freedoms, we felt that that wasn’t the right way to be and that having legislation debated in Parliament and some clarity around what the law was was a better way to be.

We also said that, in return for continuing to support the legislation, we would like to see the time frame shortened and some instruments of accountability for officers empowered under the Act, so that people who felt that their rights had been trampled by people empowered by this legislation would have some recourse in complaint, because, as Chris Bishop said, the rule of law, the ability to read what one’s rights are and to be able to go and seek redress if they are violated, is fundamental to our free society. Unfortunately, the Government was not of a view to take that feedback on board, and ACT opposed the legislation in the third reading as a result.

I think it’s fair to say that, in the time since, the fears that we had that led ACT to oppose it have not been realised, and I think that is a basis to support this legislation staying in place for a further three months—of course, having the ability to oppose it if those fears were to be realised. I think that’s the sensible and constructive way to come at this legislation. There should be a framework and a legal framework consistent with the rule of law that allows the Government to put in place public health orders to manage what is a real threat to New Zealanders’ wellbeing.

Having said that, I also would comment that it would be a lot easier to support this legislation if the Government was prepared to use it in a more nuanced and sophisticated way to manage risk. This legislation gives the Government power to test and detain and issue orders in a small area to contain outbreaks, and I don’t believe that we’re seeing the level of sophistication in the Government’s response that we could.

Just this Friday, I hosted Mr Jeff Liu, who is the representative for the Taipei Economic and Cultural Office in Auckland. You’re not allowed to say it but he’s basically the Consul-General for Taiwan in Auckland. He described the sophistication of the Taiwanese response that’s seen them have twelve times fewer deaths per capita than us, with no lockdowns.

One thing the Government might consider, given the power it has to make sophisticated orders, is putting in place some proportionality in relation to quarantine and isolation requirements and the destinations from which people come, because the walls are coming down in Australia, and New Zealand risks being the poor cousin isolated from the other, what you might call, six states of Australasia. People who are tourist operators in somewhere like Te Anau, who are on the bones of their derrieres, would reasonably ask the question: why is it possible that Aucklanders, where Auckland has had community transmission within a few weeks, can come here and spend money—hopefully—but people from Perth, Western Australia, where there has been no community transmission for seven months cannot come here without two weeks’ quarantine? Why do we quarantine people from Taiwan, where COVID is completely under control, in hotel rooms next door to people from India and California, where it is rampant?

Those are the sorts of questions about proportionality that should be asked and that having the instruments in this law would allow the Government to introduce some proportionality and sophistication in its response, and sadly there is not. You can hear the barracking from the Government benches because they know that ACT is right about this. Thank you, Madam Speaker.