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 31 December 2021.

The COVID-19 Public Health Response Act passed on 13 May last year was passed at a time when it was very clear that New Zealand’s go hard and go early approach when it comes to COVID-19 was the right one, but that the response was going to have to continue over a sustained period time and that extraordinary powers would be required to ensure that we could continue with the success that we had achieved.

The Act has been extended twice before, on 5 August, and then again on 8 December. This extension, though, is the first time the Act will have been extended under the new scrutiny provisions that Parliament has agreed as part of the review of the Standing Orders. This means that in order for the Act to continue, I, first, as the Minister responsible, have to set down a notice of motion. That notice of motion then goes to a select committee for consideration, and then the committee reports back a recommendation to the House, and then I have to stand up in the House. So there is additional select committee scrutiny of whether or not it is justified for these extraordinary powers to be continued. I am one of the people who believes that these powers should remain in place only as long as they are absolutely essential for our COVID-19 response. These types of extraordinary pieces of legislation have in other countries been the beginning of a demise for democracy. In New Zealand, we like our democracy, we want to keep our democracy, and therefore this Act should only be in place for as long as it is absolutely required.

I want to thank the Health Committee for examining the motion that is now before the House. Their consideration was thorough, and I thank them for the opportunity to appear before the committee and to answer their questions on why the Act is necessary, and any questions that they had on how the Act had been used. Recent community outbreaks of COVID-19 demonstrate that there is an ongoing risk to our community, and therefore we need to continue to have these protections in place. The global challenge of COVID-19 continues, and in many countries the virus continues to spread at an escalating rate. That means that New Zealand remains at risk.

Therefore, I’m asking the House to approve the continuation of the Act through to the end of the year. By that time, we hope to have the vaccine programme completed, or everybody to have had the opportunity to get a vaccine. We’ll be able to assess the situation here in New Zealand and internationally and decide on an appropriate way forward. It may be that the Act needs to be continued further, it may be that a more limited version of the Act is continued into the future, or it may be that we no longer need these extraordinary powers.

The Act does allow for restrictions that are put in place to be rolled back quickly once it becomes evident that they’re no longer necessary. Again, as the Minister responsible, I have been very keen to ensure that where restrictions are no longer justified, they are removed as quickly as possible. I’m keenly aware that the Act does give me as the Minister responsible powers that just one year ago none of us in this House would have believed were necessary or justifiable in the 21st century, but those powers and that ability to move quickly have been essential in our COVID-19 response. And so I am asking the House to allow for that to continue. It is a good legal framework, it allows us to protect our borders and our communities from COVID-19 for the remainder of 2021, at which point we can then consider what we need to do in the future.

I thank the Minister for the elucidation in relation to the motion around the continuation of the Act. Having opposed the original Act in the first place, the National Opposition will, without too much rancour, not vote for the continuation of the Act, again. But we do want to note, for the House, that, generally, we have been happy with the way in which the Minister has exercised his powers under the Act.

I was on the Health Committee for almost the whole time that we were considering the motion in relation to the continuation—sadly, I’m not on the committee any more. But the Minister is right: we did have a good discussion through the committee, and he was kind enough to come and address us, and we had a good chat.

I just want to make a quick comment around the rationale for the extension of the Act until December 2021. I take on board what the Minister says around the necessity of extending it to that point but not going beyond, if necessary. My experience is that the Leader of the House is someone who is very conscious of the constitutional obligations upon the Government around not taking as much power as is necessary—or only taking as much power, in extraordinary circumstances, as is necessary to give effect to any action that is required pursuant to that emergency. I understand and know that he appreciates that.

I, for one, would like to see a situation towards the end of the year, I hope, where a more tailored and narrowly crafted piece of legislation could be passed, and I suspect a more narrow piece of legislation—I’m looking at my ACT and Te Paati Māori colleagues on this side of the House—could be one that the Opposition parties could support. I think that is really important, in so far as it’s possible to have some degree of unity and partisanship over extraordinary legislation such as this. I give my assurance on behalf of the National Opposition that we will work diligently when the time comes to craft an appropriately tailored piece of legislation that responds to the circumstances as they are at the time but that also doesn’t take too much power for the Government.

So we are where we are. It will extend into December 2021, and I hope, as he says, that we will have a better understanding by then as to what is required. And, in some ways, the situation in December could potentially look quite radically different to where we are today. One of the lessons, I think, that we have learnt over the past year or so is that things can move very quickly, and I just reflect on the various alert level changes that we have all had to grapple with and endure at various points. Time has slowed down for many of us in the Parliament, at various points—you know, time certainly slowed down during the lockdown, to some extent, but time has also sped up. So it’s been a strange old time. But I think by December we should have a better idea, because the vaccination programme, we hope, will be in full swing. In fact, we hope it will largely be over, although the odds of that are not great, I have to say. But we will be able to better craft and tailor a response.

Just a couple of brief remarks around the interrelationship and the interaction between the COVID-19 Public Health Response Act and the Health Act 1956: I think—and we canvassed this briefly during the committee process—that the most recent February outbreak was handled poorly from a legal point of view, and I do want to put that on the record. We had this situation where the legality, or, at least, the legal authority, around the instructions given to people asked to self-isolate and get tested, were, I would say, at best, unclear. And we had, of course, the reasonably unedifying example of the Prime Minister and people who worked at KFC engaged in, essentially, a debate. One person had a pulpit, the other person had a journalist, so it was hardly a fair fight. We had a reasonably unedifying exchange around what people were and weren’t told.

I think one of the root causes of the confusion there actually goes to legality, because Dr Bloomfield, as I understand it, maintains that orders or instructions given by public health officers are done pursuant to the law, and, I think, there is possibly some debate around that, but I think it is beyond doubt that the eventual section 70 order made under the Health Act 1956 was promulgated too late. It wasn’t gazetted, as we now know from the written questions, and it should have been, and it should have been much more widely publicised.

So I do just put on the record that I think—I mean, no one wants to have this situation happen into the future, but in the event that we do have to have a similar incident in the future like the one that was sparked by the LSG Sky Chefs Valentine’s Day cluster in Auckland, or anywhere, actually, we need to be much more expeditious when it comes to the promulgation of not only orders pursuant to the COVID-19 Public Health Response Act but we also need to be cognisant of the promulgation of orders under the Health Act 1956 as well, because that information should be able to be easily found, and that goes to the rule of law. People need to know easily what they’re required to do, and they should be able to find that, and it shouldn’t have to be done orally by the Director-General of Health a week or so after the actual order is made. That issue was canvassed to some extent in the committee; I did just want to put that on the record.

So thank you to the Minister for referring it to the committee. I thank colleagues on the committee at the time for the diligence with which we considered it. We won’t be supporting it, but we recognise the reasonable way it’s been used by the Government up to this point. Thanks.

Tēnā koe, Madam Speaker. Tēnā koutou e te Whare. The Green Party is supporting this motion. We just want to acknowledge that there were extraordinary powers, and as the Minister said in his comments, it included powers that none of us would have imagined possible or supported before we found ourselves in this situation of a global pandemic. But I think that globally it’s recognised that New Zealand’s done really, really well in our response and that the Government has been very balanced, open, transparent, and measured in its use of these extraordinary powers and has really used them in so far is it was necessary to ensure that our people were safe from COVID-19.

Of course, I, like many other people in this House, have friends and family who live in other countries where the virus has just gone rampant and not been controlled, and there’ve been serious health consequences for the people there. There have been very serious economic consequences, and they haven’t been able to live life as freely as we in New Zealand have been able to during this past year. So the Green Party thinks that these powers were justified. We totally understand the extension of the bill and we think that it is a reasonable amount of time to extend it. That is all we have to say. Thank you.

I rise on behalf of ACT in support of continuing the COVID-19 Public Health Response Act. In times of adversity, we want to support our Government. COVID-19 has challenged every country. Every Government has responded in its own way. But the Opposition has a role to play, too. As an Opposition party—and fast-growing one, at that—ACT has adopted a constructive mantra through the COVID period. Our mantra has been to make constructive criticisms when necessary, helpful suggestions where possible, and ask the questions New Zealanders need answered.

When the COVID-19 Public Health Response Bill was passed, ACT supported it, while making suggestions for how it could be improved. When those suggestions were ignored by the Government, we opposed the bill at the third reading. We believe it is important that the law is written down and accessible. It should be transparent. Sending orders to the Regulations Review Committee is the right and proper thing to do. We watch for abuses of Government power. We’ve continued to monitor how the Government makes its orders and gives notices under this Act. We believe, at this time, the Act should be renewed. Since it expires tomorrow, the Minister has left it not a moment too soon.

However, it is clear that the Government is not using the powers as it could. Let me give just three recent examples. Number one: border workers still aren’t vaccinated. One of the most powerful things that the Government could do to save us from the uncertainty, cost, and pain of lockdown is to make sure that those working at our borders are vaccinated. They don’t have to get vaccinated, but they don’t have to work there, endangering the rest of New Zealand, either.

Number two: border workers aren’t being tested. The person at the centre of a recent near-outbreak hadn’t been tested since November. This Parliament gave the Government the power to insist on testing, but it hasn’t been used effectively.

Number three: the Australian opening. All the Government needed to do was put in place the same rules that New South Wales did. Parliament gave them the power to do it. But we stayed shut, for no reason, for six months.

So we think that the law should be written down. We are happy that they are not abusing it. We are happy for the COVID-19 Public Health Response Act to continue. But I say to this Government: if we’re going to give you this power, then, for God’s sake, use it competently. Thank you, Madam Speaker.

Tēnā tātou e te Whare. Just to make a contribution to this discussion, to this debate, there is a lot within this Act that we are supportive of—the measures that enable public health regulations to deal with COVID—but we are opposing this motion because the Government has not removed the ability to undertake warrantless searches of marae like they said they would. This, to us, was a breach of our mana motuhake.

Māori—and I speak from experience—stepped up and looked after our own communities. Māori put up the roadblocks to ensure the safety of our communities. I can speak of experience within an iwi that have had mass graves, that have had mass tombs, because of past pandemics that have not been favourable to Māori. So I look at this particular legislation, and it disguises marae, in clause 20, to remove the reference to private dwellings or marae and replaces it with the term “specified private premises”, which is defined as “private dwellings or marae”. There is no specific mention in the Act to any other specific building or place of significance where this rule applies—churches, mosques, community centres, Freemason halls, etc., etc.

We haven’t seen a Māori response plan. At 1 o’clock, during the 2020 COVID-19 reports on TV, not once did we hear a Māori response—not once. And so there was an uproar. There was an uproar within te Iwi Māori because of the blatant attack on marae and our mana motuhake to be able to look after ourselves.

I speak from experience as one of those who stood on the borders of an iwi. I speak from experience as one of those who have the keys to their marae, who are there at the beginning of any hui—and especially during COVID—and there at the end. When you have a majority Māori caucus in Government, I expect more, te Iwi Māori expects more. We expect to be protected. We expect the places of our last bastion that holds on to our tikanga and our mana motuhake, and that is places like marae.

So we were fiercely protecting our own. The COVID-19 Public Health Response Act sought to target Māori by permitting unwarranted police access on to our marae, the very places that were at the heart of our Māori COVID health response. That is where we packed foods. That is where we ensured that our pakeke, our elderly, were looked after. We made sure they had firewood. We made sure they had kai. We hunted, we gathered, we fished on our marae. All of those packages were done on our marae.

So we are not supportive of this legislation if it continues to segregate Māori, once again, by the police, who we have been putting pressure on around racial profiling. Once again, this adds to the list of things that this Government is allowing the police to do to our people and, now, innocently, they are allowed at their discretion. Now, if you are racially profiling Māori at your discretion, you can go on to a marae without a warrant. That’s absolutely—I think this is a really disgusting part of this legislation.

So the Māori Party see a trend happening here, and the trend looks very much like what happened in Parihaka in Taranaki when the members of the Constabulary Field Force prepared to advance on Parihaka in 1881. It looks like what happened to the resistance leaders of Te Whiti o Rongomai and Tohu Kākahi. It also looks like the return of the 1916 raids on Maungapōhatu with Rua Kēnana. It also looks like, more recently, under the same Government, the raids in the Ruātoki Valley in 2007, also the raids on Te Whānau-a-Apanui when they stood up against deep-sea oil drilling. They used naval frigates to take the police to arrest our people in their tribal territories. Not only did they target marae; they targeted our people from our cultural right and traditions to also gather food, to fish, to hunt at alert level 4.

So this bill—yes, there are parts of this bill that we support, Hon Chris Hipkins, but there is a strong, strong resistance by the Māori Party, because marae are still being targeted in this piece of legislation—because of that and because of the uproar at that particular time. The only person that stood up for Māori at that time came from National. And so that is why, I think, the Māori Party is here. We are here because of decisions made in the last Government, from 2017 through to 2020, because of the degradation of our people. There is a saying in te Iwi Māori: “Kei runga te kōrero, kei raro te rahurahu.” So while we talk to your face up here, kei te rahurahu kē te ringa i raro nei [the hand is meddling below].

So while we are saying, “We will look after you.”, there are parts of this legislation that absolutely insults our intelligence. It insults our intelligence because you disguise it in other references, like “specified private premises”, which is defined as “private dwellinghouse or marae”. To me, that is racial profiling, and you are allowing the police to have unfettered access to our marae when there are already questions around the racial profiling of Māori. The numbers don’t lie. The figures don’t lie. Māori are highly represented across all of the statistics when it comes to police dealings.

So we do not support this particular bill. We will continue to protect our whakapapa by ensuring that if the Government doesn’t come up with a Māori COVID-19 plan, te Iwi Māori will continue to protect our whakapapa, because we do not want to see mass graves. We do not want to see mass tombs in our cemeteries any more

This is about mana ōrite. Mana ōrite is being able to share the decision making. Māori were not part of this decision making or part of this bill. We need to ensure that the people who are participating in these particular legislative changes or bills are the people that hold the keys to their marae. I challenge any of the Māori in the Labour Government at this time: how many have held the keys to their marae? How many are there at the beginning of a hui and at the end locking it up? Because that would determine whether they would agree with this particular bill or not. That would absolutely determine that.

So, in closing, this is about ensuring that Māori hold their mana motuhake and their tino rangatiratanga on their marae, on their last bastions, because that is what Te Tiriti o Waitangi allowed us to do. And so, in closing, on behalf of te Iwi Māori and on behalf of Te Paati Māori, we will not be supporting this bill. Kia ora tātou.