COVID-19 Orders — Approval

I move, That this House approve the following orders made under the COVID-19 Public Health Response Act 2020:

COVID-19 Public Health Response (Air Border and Isolation and Quarantine) Amendment Order (No 2) 2020,

COVID-19 Public Health Response (Maritime Border) Order (No 2) Amendment Order 2020,

COVID-19 Public Health Response (Air Border and Isolation and Quarantine) Amendment Order (No 2) 2020 Amendment Order 2020,

COVID-19 Public Health Response (Air Border) Order (No 2) Amendment Order 2021.

The motion that I have just mentioned confirms four orders that I have made under the COVID-19 Public Health Response Act 2020, a brief comment on the process that has led us to this point first, and then I’ll go through the specific orders. Under the rules set by the House, my ability to issue an order under the Act is subject to parliamentary scrutiny through the Regulations Review Committee. That is absolutely appropriate because the COVID-19 Public Health Response Act 2020 gives me, as the responsible Minister, quite considerable ability to issue orders, and there should be parliamentary scrutiny of those.

The Act recognises that we need to make decisions quickly and we often need to amend those decisions quickly as we deal with an unprecedented global pandemic. It is still important, however, that those speedy decisions are the subject of scrutiny by the House, and I want to thank the Regulations Review Committee for the work that it has done in fulfilling that function. Three of the orders that we are confirming now have been inspected by the committee and they found no matters that they wished to bring to the attention of the House. Those are the amendments that have been made to the COVID-19 Public Health Response (Air Border and Isolation and Quarantine) Amendment Order 2020—two lots of amendments there—and also to the COVID-19 Public Health Response (Maritime Border) Order (No 2) 2020. Those are relatively technical changes, reasonably straightforward, and have been well canvassed.

The order that the committee did want to raise an issue with, and I want to speak to the issues the committee raised, is the COVID-19 Public Health Response (Air Border) Order (No 2) 2020. This is the order that I signed off on in January 2021 that provides for the new pre-departure testing requirement. Nobody, I think, objected to the pre-departure testing requirement. In fact, I think that was broadly supported across the House. What the Regulations Review Committee did, however, question was exactly how that pre-departure testing system was going to operate and, in particular, who would make decisions about who was covered by it and who was exempt. They’ve raised, I think, some quite legitimate issues that the Government will address. So, while we’re confirming the order as made, I do want to accept the criticism made by the Regulations Review Committee and say that we are going to go about fixing that, to ensure that the anomalies that they have identified have been addressed. There are two ways that we’ll do that, but first to what those anomalies are.

This amendment order established the requirement for people before travelling to New Zealand to get a negative COVID-19 test within 72 hours prior to departure. I delegated, through the order to the director-general, the power to gazette the countries to whom the pre-departure testing would apply. Initially, we imposed that requirement on travellers coming from the US or the UK, with a note in the decision that the reason for doing that was because of the significant outbreaks of COVID-19 that they were experiencing, and particular concern around the more highly transmissible variant emerging in the UK. Allowing the director-general to gazette which countries it applied to allowed us to add countries as risk was identified. The reality now is that, within a short space of time, the presumption there reversed: where we extended that requirement to all the countries unless there was an exemption, and then subsequently issued an exemption to that.

The reason the Regulations Review Committee raised a concern was that the COVID19 Public Health Response Act 2020 specifically allows the director-general to exempt people from requirements. The Regulations Review Committee was concerned that allowing the director-general to decide who was covered by requirements was an unusual or unexpected use of the delegation ability within the Act. I think that that’s a legitimate point; so we will amend the order to make it clear that it applies to everyone, unless people are exempted. So we will make that as a further amendment to the order, and then that will then be subject to Regulations Review Committee scrutiny again. That will get around the issue that they have raised. However, it does raise a wider issue that the Parliament will have an opportunity to consider when we next consider amendments to the Act itself, and that is whether or not the director-general should be empowered to be able to include people within the scope of an order, rather than just exempt them from the scope of an order. That’s particularly, I think, relevant when we’re talking about quite operational decisions. It is an anomaly, I think, in the Act.

The Act itself was passed through Parliament during an emergency situation where we had to put a legal framework in place very quickly, and so we now know a little bit more about how that Act can be improved. I intend to bring forward several sets of amendments to the Act. The first, which will come through in the next few months, will be the easier changes to improve the Act that have been identified. A second, later in the year, will deal with some of the bigger policy issues that have been raised. Obviously, one of the reasons for doing this is I want the Act to be as complete as possible. Also, I think it’s important that the Act, which is likely to be used as a template should we ever have to do this again in the future, is as up to date and reflective of practice as possible. So we’ll bring further amendments to the Act forward in the future.

But, ultimately, these are all sensible decisions—I think; I made them—being approved by the House that are an integral part of our overall COVID-19 response. They largely relate to movement around the border and making sure that our rules there are as clear as possible. So most of the amendments we’re dealing with here are amendments of clarification, and then, also, the most substantive additional amendment we’re making is the implementation of pre-departure testing, which, as I said, I think everybody, by and large, supports, but there has been a technical issue about how that was implemented that we are working to resolve.

The question is that the motion be agreed to.

Thank you, Mr Speaker. I want to thank the Minister for COVID-19 Response for the fulsome update to the House. The National Party supports these orders and will be voting accordingly. I want to make three points just in response to the comprehensive explanation given by the Minister. The first is that we have read the report of the venerable Regulations Review Committee in relation to—

💬 Hon Chris Hipkins: The all-powerful!

—pre-departure testing—all-powerful; “somewhat powerful” is probably a better description! We’ve read the review and want to thank Chris Penk, who’s the chair of the committee, for doing a good job on that and leading the committee through that. I think the Minister’s comments around sorting out the anomalies are something that we would support. I mean, the reality is we’re dealing with tricky issues of when Ministers have powers and when those are delegated to officials rather than Ministers, and, you know, no one pretends that you get these things right all the time, which is why we have the Regulations Review Committee to investigate those finely grained issues of constitutional detail and bring them to the attention of the House—so that’s the first point.

The second point is that I note the Minister’s comments around the review of the COVID-19 Public Health Response Act more generally. I think we would welcome that review. And, as to how it’s working, I encourage the Minister to possibly engage with the Health Committee around some of the scope of that review, and the Health Committee may be able to provide assistance there, because, I think, it is important that we have bipartisan—or as much multi-partisan support for that Act as possible.

I think one of the suggestions that has been made is that the Epidemic Response Committee should be re-formed—that has certainly been made by some members of the House. I think, if there’s not going to be an Epidemic Response Committee formed as a somewhat permanent, temporary standing committee for the purposes of this Parliament, it would be good to see the Health Committee of the Parliament using more of the powers that the committee has available to it around briefings from Ministers but also the senior officials at the heart of the COVID response, and also looking at expert testimony from epidemiologists and other public health experts who are either peripherally involved or directly involved in the response.

I also note what the Minister spoke about earlier, during the ministerial statement part of the foregone proceedings in the House, around looking at the scope of the various orders that exist now around the laundry worker who is potentially, or possibly, the source of this most recent cluster, and there’s a review under way on that to look forward to, possible amendments to the various public health orders coming on that in due course. We accept the Minister’s point that the public health advice, or at least the risk matrix that was determined at the time, was that they shouldn’t be included in the order, and perhaps they now should be—this is a part of the continuous improvement that we all want to see.

So, with those remarks, we support these orders. I thank the Government for bringing them to the attention of the House so that the House can confirm them.

Mr Speaker, I rise at this auspicious occasion in parliamentary history. It’s almost the first time in the history of our Parliament that the ACT Party has more members in the Chamber than the National Party. I just couldn’t help but point that out. I’m not quite sure what’s happening there, but I hope that they haven’t got lost somewhere in the building or complex!

In any case, this is a very serious matter that we should turn to. The history here is that there was a lot of dissension over—oh, here comes another one; we’re back—the COVID19 Public Health Response Act. And, I guess, the safety valve that the Government put in place—and I think it was a good one—was to be able to continue to debate the orders that were put in place, because we gave some pretty extraordinary powers to the Minister and the Chief Executive of the Ministry of Health that would restrict New Zealanders’ freedoms. We felt that Parliament, being an elected House of Representatives, should have the ultimate oversight over that, and it has. As ACT, we believe that these orders certainly haven’t threatened New Zealanders’ basic liberties in any particularly pernicious way, and we’d actually encourage the Government to start using them more surgically, for want of a better term, so that it can combat COVID-19 without putting such damaging blanket restrictions on New Zealanders’ freedoms such as, for example, spending most of the last three weeks under some level of restriction.

As Aucklanders, that is having a devastating effect on kids’ education, on people’s non-COVID healthcare, on businesses going broke. I’ve got businesses—the Minister said the events space is going well; he should ask the people at the ASB Events Centre, an iconic venue in huge trouble. You ask, “Well what does that mean?” and “Why is that relevant here?” Well, we have orders and restrictions under the alert level regime, at least, which mean that you can go to a shopping mall with thousands of other people—Westfield Newmarket every Saturday, every Sunday; there’s more people in that mall than a lot of towns in this country—and yet ASB Showgrounds can’t have an event with the same number of people, even though they’re prepared to put much more stringent controls into the access that people have. We’d make the case, on behalf of the ASB Showgrounds and other people trying to hold events, that actually the Government should use these powers it has to make orders that are a lot more surgical in the way that they keep people safe from COVID and allow people to go about their business. You can go to Westfield Newmarket with a couple of thousand other people at a time, constantly going in and out—very dangerous. Having a controlled, restricted entry in and out, with special planning of where people can stand at any given time within the ASB Showgrounds—people who are experts at tracing who comes and goes from their exhibitions for other reasons, by the way—they can’t do it. And I think that’s an example where it could be more surgical.

Another example, you know, we’ve got air border orders that we are confirming here. The border is now facing quite a range of different people. We haven’t had a case from Australia, if I understand it, for months, but we’re still getting cases almost every day from other parts of the world. There are countries that are very close friends of New Zealand, particularly our friends in the Pacific—you know, your Samoa, your Cook Islands—where they have no cases of COVID and haven’t had for a long time, in Samoa’s case ever. They are at greater risk of catching COVID-19 when they get put in managed isolation at the Pullman in New Zealand than they are in Samoa or once they get out to the rest of New Zealand. The question is, why do we endanger them like that? Again, the Government could use the orders, the powers this Parliament’s given it, to be more surgical, to actually start treating different risks differently.

So, far from saying that we need to restrain the Government or stop it from using these orders, I’d actually encourage them to make use of the powers that Parliament’s given the Government to put in place orders that allow people to maximise their freedom and prosperity without having to be further endangered by COVID. There’s lots of opportunities to do it; I’ve given two. What do I know? I’m just an Opposition member of Parliament who’s identified two pretty obvious opportunities that the Government hasn’t used. I think, if the Government was to bring the extraordinary resources that it has, $100 billion a year budget, I suspect it could actually think up quite a few more ways to use more surgical orders.

Here’s another one: we have an NZ COVID Tracer app. Now, I’d be willing to support the Government saying, actually, not only is it mandatory for businesses to display a QR code it’s mandatory for visitors to those businesses to use them. Let me just tell you how it works; it’s pretty simple. Person A, Matt Doocey, comes in. Now, if there’s 50 percent usage, then there’s a 50 percent chance that we get him. Now, of course, I know Matt Doocey uses it all the time; he’s a good citizen, very good representative of the people of Rangiora.

💬 Hon Scott Simpson: Hard-working MP!

Yep, hard-working MP. Fifty percent chance that Person A uses it. Then the next person that comes in, Scott Simpson, hard-working MP for Coromandel, 50 percent chance that he uses it. The chance that both of them scanned in at the same place is only 25 percent, and that’s if 50 percent of people are scanning in. The chances of actually connecting two people who are there is only 25 percent. Now, in reality, we’re lucky if 10 percent of people are using it, and 10 percent times 10 percent is a 1 percent chance of it working. So all the good people like Scott Simpson and Matt Doocey, hard-working representatives of provincial New Zealand who scan in wherever they go—and there’s Stuart Smith, he’s looking for a bit of attention in the back there—

💬 Stuart Smith: Absolutely!

He’s from Kaikōura and he scans in. All the hard-working people like Scotty and Matt and Stuart—I should say Simpson, Doocey, and Smith, Mr Speaker, because I want to follow the Standing Orders—they’re all working hard along with a whole lot of New Zealanders who go and follow the rules, turn their Bluetooth on, and scan, but the reality is that so few other people are doing it that the Government’s not tracing anyone.

We heard that; the silence was deafening. During this Valentine’s Day outbreak, we did not hear anything from the Government. If they’d used the NZ COVID Tracer app to actually connect any cases in that cluster, they would have been shouting from the rooftops. They would have been saying the Tracer app is working; I guarantee it, because this Government’s good at nothing if not publicity. The fact that we didn’t hear from them tells me they didn’t trace a single contact using the NZ COVID Tracer app. Well, I’d be supportive, and ACT would be supportive, of the Government using the powers it has under the COVID-19 Public Health Response Act to actually put in place some mandatory requirements. It’s already mandatory for a business to display a QR code; why not make it mandatory to sign in?

There’s another way they could use these powers, and if that means that we can trace a cluster faster and not have to have a whole city under lockdown at varying yo-yoing levels of restriction for three weeks, I think that’s worth it. And I say that as someone who is nothing if not a civil libertarian. I’d put my reputation as a civil libertarian up against anyone in this House, and I think actually it is worth balancing the requirements that people have in facing an epidemic in order that we maximise our overall freedom. There is no freedom for people losing their businesses, no freedom for kids missing out on their extra-curricular activities and their school. There’s no freedom for people missing out on their mammograms who actually don’t know they have breast cancer as a result. Those are the kinds of things that we need to be thinking about, and so I commend these orders, I encourage the Minister to actually get to work in making more of them.

Because here’s the thing: one of the key roles of Government in the case of an epidemic, an emergency like this—but, actually, in general—is to be an effective and efficient regulator; to set clear rules of the game that people can find and read and understand so they know what the rules are and they understand what the consequences might be of breaking them. As we’ve seen in the last few weeks, when the Government doesn’t do its job of making the rules clear, confusion ensues and people get locked down. We don’t want that. So the next thing the Government could do, that I would encourage the Minister, is to take these orders and actually publish a comprehensive chart of the circumstances in which people can find themselves and say, “This is what you do if you suspect you’re sick” and then the flow chart tells you what happens when you get tested, and what happens to people who’re near you. Because, actually, I know people who have been in this situation, and they’ve found it damn difficult to find out what the answer is. And the next thing they should do is actually show the authority, show the specific order that makes it a requirement to do such and such a thing if you are in a certain circumstance. Because, at the moment, the Government’s got all this legislative power to make the rules; they’re not making them surgically enough, they’re not making them clear, and they’re not linking their communications to the rules. Those are all ways the Government could do better.

It’s not often that this Government will get encouragement from the ACT Party to make regulations and talk about its regulations. This is actually one of those times. And so, with that, I commend these orders. I hope the Minister will take them seriously and use them better to maximise New Zealanders’ overall freedom and welfare. Thank you, Mr Speaker.

Motion agreed to.

Orders approved.