COVID-19 Public Health Response Amendment Bill (No 2)

It’s been a very good debate so far, I have to say, and I’m looking forward to it continuing—probably for quite some time. I particularly want to draw attention to a part of this bill, clause 7. It’s a little bit confusing, the nomenclature, but clause 7 changes section 11 of the Act. Section 11 is all about the kinds of orders that the Director-General of Health, currently a position filled by one Ashley Bloomfield, can make under the law. What this bill does is it changes the COVID19 Public Health Response Act to say that in addition to the orders that can currently be made, the director-general can also requisition laboratory testing material, laboratory testing equipment, and laboratory testing personnel and force them to do testing for the purposes of the Government, and on the face of it, some people might say that if there’s an emergency, we want the Government to go and grab all the stuff it needs and enslave the people required and force them to respond to the emergency on behalf of the public. That’s sort of the cartoonish reading of this legislation. But, actually, people who have looked at this and people who have sat on the select committee, as I have and as ACT deputy leader Brooke van Velden has, and listened to the people who would be affected think this is a totally outrageous, dangerous piece of law.

Just to be completely clear about what section 11says, it says, in subsection (1)(d), “in relation to laboratories that undertake COVID-19 testing, by—(i) setting quality control measures … (ii) requiring test results to be reported … (iii) managing the supply of testing consumables …. (e) requiring the owner or any person in charge of a specified laboratory of any laboratory that undertakes COVID-19 testing to—(i) deliver or use in accordance with directions given under the order specified quantities of COVID-19 testing consumables that the Minister considers necessary for the purpose of the public health response … (ii) undertake COVID-19 testing solely for the purposes of the public health response to COVID-19 while subject to the order,”. What this means is that if you invest in the very thing the Government says it wants, then you might get all your stuff taken, and as Eric Crampton, the economist from the New Zealand Initiative, has pointed out, if the Government is worried about power cuts, telling people that anyone who invests in a generator might get their generator stolen by the State is not going to make people want to invest in generators.

These people, for example at Rako Science, have worked incredibly hard for almost two years, using their ingenuity, investment, and contacts with people overseas to bring this technology to New Zealand, and now the Government’s saying, “Actually, if we need it, we’ll just take it.” Taking people’s stuff is always bad but it’s particularly bad when it has the opposite effect of what it wanted.

Here’s the second issue. The Government says that there will be compensation at a market price. Well, here’s the thing: there is no market for this stuff. The whole reason there’s a shortage and they want to compensate it, is that there are very few willing buyers and very few willing sellers that they can actually go to work out what a market price is. So when you say there’s going to be compensation at a market price, that’s meaningless—there is no market price so there is no meaningful compensation. Then they say, “Well, if you don’t like the market price you can appeal.”, but actually—no, sorry, I made a mistake there. That’s what you’d expect in a normal lawful jurisdiction, a First World, developed, Western nation like New Zealand—that if you go and get a judicial decision and you disagree with it and there are problems with the decision, you can actually appeal to a higher court. We’ve got the District Court, the High Court, the Court of Appeal, and the Supreme Court. After that you’re kind of stuffed but you get four goes. And this law says, “Actually, you can’t appeal beyond the District Court.” This is an extraordinary thing to do.

What is more, you then ask “What does this do to New Zealand’s international reputation?” We’ve had over the last four years the idea of being able to search for oil and gas off the shores of New Zealand totally erased—no Cabinet paper, no consultation; just a “podium-ocracy” where the Minister gets up and says, “We’re not going to allow that anymore, and all your business plans are wiped.” People have asked what you can do about that and I’ve said that if the Government changes we can actually reverse that law, but we can never rebuild the trust of the global community who now see New Zealand as a place that’s a little bit more of a banana republic and a little less likely to offer you secure property rights.

Then we had a Government that said, in the middle of a crisis, “If you have a contract that you signed in, say, 2010, to have an arrangement between two people, an agreement they voluntarily entered into to pay rent in return for the service of providing property at a certain standard, well guess what? That may have been the law when you signed the contract but we are now changing the law retrospectively so the contract you signed will be judged under today’s law, not under the law of the time.” This is an extraordinary thing. If living in a civilised society with the rule of law means anything, it’s that you can only be judged for the things you did under the law at the time you did them. You can’t have the goalposts shifted and be punished for doing something that wasn’t actually wrong when you did it. So the Government retrospectively changed the law on commercial contracts. Then it comes along and says that if you have—and Chris Hipkins is muffling away there from behind his mask. He’s getting very agitated. Chris Hipkins is a very conflicted man here. You see, the thing is that Chris Hipkins the parliamentarian knows that all of this is wrong, but Chris Hipkins the buddy of Ashley Bloomfield is being forced to do this and he’s putting up these legislative initiatives that may well work with—oh, here we go.

💬 Hon Chris Hipkins: Point of order, Madam Chair. The member knows that the statement he has just made is contrary to the Standing Orders. It would suggest an extreme breach of parliamentary privilege and he should have to withdraw and apologise for it. He cannot suggest that someone is being forced to do something in the House.

CHAIRPERSON (Hon Jacqui Dean): The member will withdraw and apologise.

I withdraw and apologise. Madam Chair, the problem is that the first part of my statement Chris Hipkins didn’t object to. He knows that it is absolutely wrong to be bringing up this kind of legislation that violates the rule of law and violates trust in New Zealand institutions and violates trust in New Zealand. He’s right that it’s wrong to say he’s being forced to do it, but he still knows that it’s wrong, and that’s his real problem and that’s why he’s muffling away and raising points of order—because he knows what he’s doing is a betrayal of the principles of the rule of law and the security that New Zealanders need.

Now, after we ban oil and gas contracts, after we ruin contracts between landlords and tenants, we’re now going to say that if you invest in the very thing that people say they need, which is testing capability, the Government may take it off you. Then Chris Hipkins says, “Oh, but if testing is really, really important, then that’s the only time we’ll use it.” Well, first of all, this a Parliament. We don’t give the Government lots of powers and say, “Oh, that’s pretty bad. I just hope they don’t use them.” Seriously? Parliament is here to restrain the executive, not make laws that allow for the executive to take your stuff. And the second thing is, if it’s true that we have a major problem with testing in New Zealand, this is a Government that has banned rapid antigen testing and won’t let anyone use it except the Ministry of Health. If they were worried about testing capability, why are they then so slow to contract and roll out saliva testing?

The report yesterday from the technical advisory group on testing was damning—this Government has completely failed at testing everywhere, and yet they now want to confiscate people’s property to cover their own failings, not realising they’re eroding the rule of law, they’re eroding trust in New Zealand’s institutions, they’re eroding property rights, and, funnily enough, they’re going to make it less likely that people will invest in testing. That’s why I have on Supplementary Order Paper 88 amendments that would remove that section 11—there would be no confiscation of people’s property in this country and there never should be.

Hon Chris Hipkins—Chris Bishop.

💬 Hon Chris Hipkins: I think we’re both offended.

CHAIRPERSON (Hon Jacqui Dean): OK, that’s excellent. Chris Bishop.

Oh, well, OK. That’s a bit mean, but OK. I’m wasn’t going to—

CHAIRPERSON (Hon Jacqui Dean): Which bit?

Well, I wasn’t going to go along with that, but OK. Thank you very much, Madam Chair. I want to echo and agree with the remarks of my colleague David Seymour. This is a very troubling provision, the provision that he refers to, in relation to the requisition of the property of testing consumables and testing companies. When I explain it to people, they actually find it quite hard to believe, and when you explain the background to the provision, they’re actually horrified by it. I think we do need some answers from the Government during this committee stage, as to exactly what reason the Government is relying on as to why this provision is needed.

Because we tried to get into it at the select committee, via the officials, a little bit, and we heard the submissions from Rako Science and other submitters, who are largely, for the most part, troubled and horrified—insert various synonyms here—and we didn’t really get an adequate explanation. So I want the Minister to explain exactly why the Government is seeking this power.

The reason people are worried about it, and horrified by it at the extreme end of it, is the background to saliva testing in New Zealand. The allegation was made in the select committee by Rako Science, who came before the committee, that at the start of this most recent outbreak—the August community cluster outbreak, which has now turned into the September and November and, frankly, December outbreak. The allegation was made by them that they, Rako Science, approached the ministry and said, “We can do 10,000 tests a day. Do you want to use some of our testing capacity?”

Now, they’re a saliva-testing partner. There’s a long backstory to that, which I may well canvass during this morning session as well. Rako said to the ministry, “Well, you know, we’ve got to test very quickly. We’ve got to test as many people as possible. Bear in mind, at the start of the August outbreak, it came out of the Crowne Plaza—we know it came out of the Crowne Plaza; we don’t quite know how, but it came out of the Crowne Plaza—it was actually in the community for a number of days before it was discovered. We’ve got to test very quickly.” And the take-home point from all the international experience is, you’ve got to test, test, test as many people as quickly as possible to find the source and to contact-trace and to get on top of an outbreak. So, I mean, that’s a pretty reasonable offer, I would have thought—very sensible. Stand up as much testing capacity as you possibly can, test as many people as you can in Auckland, and go for gold.

And the ministry said no. Get this: the ministry said, “No, we do not want you.” In fact, the allegation from Rako in the select committee submission to the House—it’s been placed on the record of the House. The allegation, or the contention, was that they were specifically told by the Ministry of Health, “Do not reserve your testing capacity to do tests.” So get this: Aucklanders are lining up for 10 to 12 hours to do tests, and we all remember the stories on the news of people lining up in the stadiums and round the neighbourhood testing stations. And the ministry went and did the pop-up nasal PCR stations, and Dr Bloomfield appeared on the news and appeared at the 1 p.m. press conference, and the Prime Minister exhorted people: “Please go and get tested.” And like very diligent, conscientious people—Aucklanders are well used to this by now, and we pay tribute to them—Aucklanders who had a little sniffle or were a bit worried went and got tested, and they lined up for hour upon hour upon hour.

Members will recall the people lining up and the stories of people texting into Newstalk and saying “I’ve been here for nine hours and I haven’t been able to go out to go to the bathroom because there aren’t any Portaloos, and it’s really stressful, but I’m doing the right thing.” There are stories of people literally in the queues all day long who get to the front of the queue and then the testing station is closed. So they waited all day, took the day off work, probably reorganised their childcare arrangements—all sorts of chaos, because, you know, any disruption to family life is tricky sometimes. There will be all sorts of appalling circumstances. People did the right thing. They lined up, they got to the front of the queue, then the testing station closed at 7 p.m. or 6 o’clock or whatever, and they went home. Well, that was a waste of a day. People will remember those stories.

So get this: while all that’s going on, Rako Science, which can do 10,000 tests a day—it actually has surge capacity to do more than that, and I’ll come to that in a minute, Madam Chair. [Bell rung] Rako Science says to the ministry—

Order! Order!

💬 Chris Bishop: Madam Chair.

CHAIRPERSON (Hon Jacqui Dean): The member is now seeking a call?

Thank you, Madam Chair. Rako Science says to the ministry, “We can do thousands of tests for you. We can stand them up.” And here’s the other thing: this is in addition to the capacity the ministry has. This is not taking the resource of the ministry, it’s not taking up lab testing resource, it’s not taking one for one; this is additional. This is extra testing. Who would be opposed to extra testing at the start of a Delta outbreak in New Zealand? This is it. Who would be opposed to extra testing at the start of Delta in August in Auckland in New Zealand? The Ministry of Health. The ministry said, “No, no. Do not reserve that capacity. We don’t need it.”

And now we find—this is where it relates to the bill, Madam Chair—the Government is putting through a little provision through the COVID-19 Public Health Response Amendment Bill (No 2). So rather than just contract with Rako Science, rather than just sit down, like in any other formal negotiation, and say “You have a product that we would like. We have money to spend. Let’s meet in the middle and come to an agreement.”—rather than do that, which is what ordinary Governments do—

💬 David Seymour: It’s called “commerce”.

Well, that’s right. My colleague David Seymour says it’s commerce. Rather than do what sensible people do—meet in the middle, negotiate in good faith, and come to an agreement, which Rako Science wants to do and the Government should want to do—the Government’s decided to pass a nasty little provision through this bill to just say, “Bugger the negotiation. Bugger commercial agreements. We’ll just take your property.” That’s what they’re trying to do.

So I go back to what I said at the start of my contribution, which is, when you explain the background of this to people, they go from being kind of perplexed and bemused by it to outraged by it, and rightly so. There are far worse provisions in here as well. My colleague David Seymour has covered a couple of them in passing. The market rate provision—well, OK, as he notes, how is that going to be determined? Because the market for this is an extremely narrow one.

Then we get to the issue of the rights of appeal. So, for whatever reason, the Government is seeking the power to take this property with compensation, but if you want to appeal that, you can go to the District Court but no higher.

CHAIRPERSON (Hon Jacqui Dean): Order! I don’t want to appeal.

Sorry, no—well, you would never seek to steal property like this, Madam Chair, I know. But the Government is seeking this power.

CHAIRPERSON (Hon Jacqui Dean): Order! The member will not bring the Chair into the debate.

Sorry, Madam Chair. The Government is seeking this power, and there is no appeal beyond the District Court. So in our legal system, members will know, who’ve done Laws 101: District Court, High Court, Court of Appeal, Supreme Court. But the Government, for whatever reason—and we want to hear an explanation as to why the rights of appeal have been limited beyond the District Court. The Government, in their infinite wisdom, has decided District Court only. Why not allow further appeals beyond that? And we’re yet to get an explanation from the Government as to why that is the case.

So the provision in relation to the requisition of private property is extremely concerning. I want to know what the Government’s rationale for it is. I suspect that they will say, “Well, it can only be used in an emergency.” But, of course, it’s in the times of an emergency that we need to be the most careful about trampling on longstanding rights, because it’s always in emergencies that Governments use powers, and it’s always in emergencies that Governments extend their powers. If you go back through our long history of common law, back centuries, it’s always at times of emergency that Governments overreach and overextend. It’s in emergencies—and COVID-19 is an emergency—that the legislature should be the guardian of private property and the people’s rights and the people’s freedoms. It’s at times of emergency that Parliament must do its job to invigilate and interrogate the powers that the Government is seeking for itself at that time of emergency. So that’s Parliament doing its job, and we need an explanation from the Government as to this big legislative overreach and whether or not it is in fact warranted. Thank you, Madam Chair.

I thought I’d briefly respond to some of the issues that have been raised so far. I can confirm that there are no provisions in the bill that relate to oil and gas exploration, no provisions in the bill that relate to commercial leases, and no provisions in the bill that relate to the Ministry of Health’s procurement of saliva testing.

With regard to the requisitioning of lab consumables, I note in their minority report that the Opposition criticised the Government for a lack of contingency planning around different scenarios with regard to COVID-19. In fact, these very provisions that they’re now criticising are part of the contingency planning.

We do have to be aware of the fact that the global pandemic is not over, and we could face another public health crisis at some point in the next year or so as a result of, for example, a vaccine resistant variant of the virus emerging, which is a very real scientific possibility, and one that we need to be prepared for. And we are absolutely committed to being prepared for that. If we found ourselves in the midst of such an outbreak, we would need to make absolutely the best use of every resource that was available to us, and the ability of the Government to come to the Parliament to seek support for any measures that might need to be taken could be limited, as it was during the course of the first significant outbreak that we dealt with last year, when Parliament was not meeting during that time.

So this is part of contingency planning. It does refine the emergency powers available to the Government, and they are just that; they are emergency powers and would only be used in such an emergency. But it would be important, if we were dealing with a large-scale outbreak of a vaccine-resistant variant of the virus—as an example, as an illustration—that we were able to make the best use of all of the testing capability that was available to us, because that would be the way we would have the best chance of getting on top of the virus again, bringing the outbreak back under control.

So that is what these provisions are designed to do. In terms of the compensation clauses within it, the compensation clauses mirror existing provisions within the Health Act in terms of public health responses. When things are required for public health responses, there are existing compensation provisions in the Health Act around that, and these provisions simply mirror those.

Thank you, Madam Chair. It seems quite a long time since I’ve actually stood in this Chamber to deal with the committee stage of a bill, and what a particularly apt piece of legislation to contribute in. I’d like to commend to the committee an amendment in my name, Supplementary Order Paper 85. Although there are many things that I could contribute in this particular bill, I’ll leave it to my more learned colleague on this particular issue, Chris Bishop, and his other colleagues in the Health Committee.

But I’d like to focus mostly on the privacy of contact tracing data. As many people have mentioned publicly and in the media as well, apart from everything else with COVID, there are many who actually do not use the contact tracing app because they’re quite concerned about how secure that data is and what that data could be used for by the Government. So I’d like to put it to the Minister: is the Minister satisfied that he has addressed the concerns of over 120 lawyers, public health leaders, academics, and privacy advocates, who wrote to him in September, concerned about data privacy protection and the COVID-19 tracer app? If so, can the Minister please explain to the committee how he has done this? Secondly, are there any concerns have not been addressed and does the Minister plan to further amend the bill to take account of data protection and privacy concerns relating to the pending digital vaccination certification or pass system?

In answer to the member’s question, I’d simply draw her attention to pages 21 and 22 of the bar 2 bill, as reported back by select committee, and clause 25A, which inserts new section 34A, “Protection of contact tracing information”. That does make it absolutely explicit that no information collected during the contact tracing process or collected using the NZ COVID Tracer app, the QR code system, can be used for any purpose other than the purpose on which it is collected, which is contact tracing. That provides an additional layer of certainty.

The advice that the Government has had is that this provision isn’t actually necessary, because the existing provisions that are in place already make that clear. However, we have heard the concerns from others that they would like to see that explicitly stated in the Act. That is the reason why we have agreed with the committee’s recommendation to insert these additional provisions.

In terms of the member’s Supplementary Order Paper, I have received some advice that suggests that some of the provisions in the member’s Supplementary Order Paper may not achieve the goals that she sets out to achieve, and may, in fact, contradict the very goals that she’s setting out to achieve. The Government won’t be supporting it.

Thank you, Madam Chair, for giving me the call. Before I get on to what I wanted to talk about, I just wanted to respond to the Minister’s comments from his previous contribution today.

It’s so telling that the Government have to insert this clause to take people’s property because they can’t work together with business. We talked about having a contingency plan. Well, a contingency plan is an ability to work with and harness the power of business—people like Rako Science—use them, and work together with them when we have these situations arise. But that’s not possible, because this Government is now so out of touch and so, I would go as far as to say, estranged from business, certainly in Auckland—they’re certainly estranged from Rako—that they can’t work together with them. So here we are today, passing this, where they can forcefully take their laboratory and their property, because they are not capable of working together and harnessing the power of business in their contingency plan.

It’s this centralisation and control and “We can do better.” Well, we’ve already learnt that that’s not the case, because we’ve had so many things that have come out in reviews saying that the saliva testing can’t be rolled out and that they’re not on top of rapid antigen testing. So what they’re doing here is saying, “Well, we’ll just take your stuff, and we’ll try and do it ourselves.” Well, that is going to end in disaster.

But what I wanted to talk about today in my first contribution is the tinkering around the edges of the managed isolation and quarantine (MIQ) facilities in this bill. We’re in a really interesting situation where managed isolation and quarantine had its place, but, certainly, it has outlived that. We’re now in a situation where you are more likely to get COVID going to your local supermarket than you are from having a fully vaccinated, negatively tested traveller coming home to spend time with your family.

Now, some of my colleagues are going to talk more about Kiwis coming home, but I want to concentrate my contribution in the next couple of minutes on migrant workers. I’ve, obviously, been talking quite a lot in the last 18 months about split migrant families, who, by the way, will be spending their third Christmas apart, and no resident 2021 visa or any other tinkering around the edges is going to have them with their families.

But it’s more than just split families. We are losing healthcare workers, we are losing engineers and construction workers—we are losing them because they can’t see their families. It’s not just that they’re split from their partner and their children, but if their mother is terminally ill or their brother, or if they need to travel overseas like Kiwis can at the moment, they can’t go—they can’t go and get back. It’s been such a long time that they’re leaving and they’re choosing not to be here, because they have to go through this ridiculous MIQ system—or they can’t, actually. They can’t go through the MIQ system. They’re trapped in New Zealand.

So here we are, continuing on with a managed isolation system that is not fit for purpose any more. It is actually having the opposite effect of what we need right now, which is a good economic response. We need those migrant workers to stay in New Zealand. They’re choosing not to, because they are, effectively, trapped here by an MIQ system. They’re double-vaccinated, they’re going to low-risk countries, and they’re taking negative tests. They’re more likely to go and get COVID going up to the shops in Auckland than they are travelling to see family and coming back, being double-vaccinated and providing negative tests.

It’s really interesting that there is a part in here, in new section 3232N(2A), in clause 22, that talks about “In determining the eligibility criteria under subsection (1), the Minister must take into account—(a) the right of New Zealanders under … the New Zealand Bill of Rights Act”. There have been a few court cases. Well, they didn’t quite get there, but one of them is Bergen Graham. She was pregnant, she was trapped in America, she had a high-risk pregnancy, and she needed to get back to New Zealand in case anything went wrong, because she was not covered in the States for healthcare. She had not long to get back, and that case was taken to court. There was Crown Law advice given, and Mr Hipkins will have seen this advice. We’re probably not going to get it, because they don’t like releasing Crown Law advice, but that Crown Law advice, I imagine, very clearly said that the Government is treading on very thin ice. I suspect that that Crown Law advice—[Time expired]

Thank you very much, Madam Chair. I’d like to come back to this question of clause 7. There’s a couple of claims that the Minister has made. The Minister has said these powers to take away people’s property—to, effectively, enslave laboratories that provide COVID-19 testing—will only be used if we really, really need them. But one of the things that’s important here is that this Parliament is making laws—it’s what the law says that matters, not what the Minister promises.

Now, this law, I’ve just been trying to see—and perhaps the Minister can explain to us—where’s the bit that guarantees us that this power will only be used if it’s really necessary, because what I read here is that the director-general may make these COVID19 orders. Well, look, it says the director-general must be satisfied the order is urgently needed, is the most appropriate way; the director-general must be satisfied the order does not limit, or is a justified limit on, rights and freedoms; the director-general must be satisfied the order is appropriate to achieve the purpose of the Act. It seems to me that only one person is really charged under law with deciding if it’s truly an emergency or needs to be used. There don’t seem to be any requirements written down here that anyone else gets to judge whether it was right to take people’s stuff. It seems, to me, that it’s really just up to one person, and that’s not the rule of law. We’ve already talked about the fact that they can’t go and appeal any court decisions; they’ve taken away the rights of appeal, which is pretty incredible. But it seems, to me, that there is actually just one decision maker here; there’s no standards to see what might possibly invoke this law.

Here’s the next thing: as we heard from Erica Stanford, and Chris Bishop for that matter, in normal commercial relations you just make a deal. So here’s the scenario: you are trying to make a deal in normal commercial relations, but one party has a piece of law passed by this Parliament which says, at any time, you can just say, “Look, if you don’t like my terms, we could always invoke section 11 of the COVID-19 Public Health Response Act and simply say that we’ve decided that it’s really important that we have these powers, it’s really important that we have this equipment, because we need it for an emergency, so we’ll take it anyway. Now, is that your final offer?” The fact is that even if these powers aren’t used—and this is something that I think the Minister needs to explain whether he’s considered—they change the dynamics of any kind of bargaining with the State, because suddenly one actor has this incredible power that, in normal commerce, you wouldn’t have.

Another question for the Minister: no doubt the Minister will say, “Oh, but this is normal. We have emergency powers. Everyone knows that if there’s an earthquake you can commandeer someone’s car to use as a makeshift ambulance to take someone—” We understand all that. So here’s the question that I think the Minister needs to get up and answer: what powers already exist? Why aren’t the powers in the Health Act 1956 and the emergency powers in the Civil Defence Act not adequate to deal with this problem he talks about? And, if they’re not, what extra powers are in this law that aren’t in those laws, and what restraints are contained in those laws that won’t be constrained here? Because he can’t have it both ways. He can’t say, “Oh, this is perfectly normal. This is what we do in emergencies. We take people’s stuff all the time. No problem—nothing to see here,” and then say, “Oh, but we need to pass this extra law in order to be able to get the stuff that we need in a particular circumstance.” So there’s really two questions here: first of all, what restraints, other than the director-general saying he’s satisfied, are actually put in place on this power? Because it seems that the only restraint is that the director-general has to be satisfied. And, second of all, if these powers exist in other civil defence and health legislation, what is it that this legislation does that gives additional power?

And I’ll just finish by picking up on a remark from Erica Stanford, which was a very good one: what is it about this Government that makes it so pathologically unable to engage in commerce with business—that, when they talk about needing a contingency and needing supply, they can’t go and sit down around the table and nut out a deal, respecting people’s dignity and property rights as equals? What is it that’s so pathological about this Government that they need to resort to force to get what they want? Because, if they keep on doing that, you know what they’re going to find? They’re going to find that people with ingenuity and creativity and drive don’t have to play the game, or not in New Zealand anyway, and what they’re going to do with their succession of laws that resort to force and pathology instead of working together constructively and partnering—a word they usually like to make much of—is they’re going to make New Zealand a poorer, weaker, more dismal place with this kind of legislation. I hope they’ll stop.

Thank you very much, Madam Chair. I want to deal with some of the issues to do with—I’m just trying to find the exact right section—new section 32N(2A), inserted by clause 22, which deals with the issue of the Minister deciding eligibility criteria for offline allocations through managed isolation and quarantine (MIQ). What we’ve done as a select committee is recommended inserting new section 32N(2A), which requires the Minister to consider the right of every citizen to enter New Zealand under section 18(2) of the New Zealand Bill of Rights Act. My question to the Minister and the Government is: what policy advice has been sought previously in relation to the compliance of the MIQ regime with the New Zealand Bill of Rights Act? The reason why this is a very important question is that in my view, and I think the view of many others, the New Zealand Bill of Rights Act provisions in relation to the free movement of New Zealand citizens have been overlooked in the development of the MIQ regime.

Section 18 of the New Zealand Bill of Rights Act is very clear. Now, the bill of rights is declarative, so everything’s subject to reasonable limitation, I’ll come back to that. But section 18, “Freedom of movement”, is very clear: “Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.”—that’s subsection (1). Subsection (2) states: “Every New Zealand citizen has the right to enter New Zealand.” That’s very clear—every New Zealand citizen has the right to enter New Zealand. Now, the New Zealand Bill of Rights Act 1990 binds Parliament, it binds the Government, and it binds the judiciary—that’s section 3 of the Act—and “Every New Zealand citizen has the right to enter New Zealand.”

Now, there’s a limiting provision in the bill of rights. As described in the Bolton decision of the High Court, His Honour makes reference to the fact that it’s a bill of reasonable rights. I haven’t often heard it described like that, but that’s a reasonable description—it’s a bill of reasonable rights. So every right is expressed in a declarative way, but section 5 says that there can be limits on rights as long as they are justified in a free and democratic society. Here’s the issue: is MIQ a reasonable limit on the right of New Zealand citizens to come to New Zealand?

Now, 18 months ago, when the pandemic started and COVID was raging around the world, and New Zealand kind of by accident, kind of by design, more by accident, adopted an elimination strategy that we would keep COVID out of New Zealand, MIQ made a lot of sense. In fact, the National Party called for it, and I think we were actually ahead of the Government in saying, “You need to, you know, lock off the borders.”—because, just as an aside, the World Health Organization at the time—and David Clark, I see, is in the Chamber, and he’ll remember this from his time as health Minister—was specifically telling countries: “Don’t erect border barriers, because there’s no evidence that that helps in the prevention of spread of a pandemic.” So that was slightly strange advice from the World Health Organization; perhaps counterintuitive and certainly not in keeping with what subsequently happened. But anyway, the New Zealand Government did the right thing, which is that they put in place a very hard border in New Zealand, and said, “Basically, it’s going to be impossible to come to New Zealand—or very, very difficult—and we’ve established the MIQ regime.”, and we traversed some of the circumstances around that last night. We’ve had this MIQ regime in the hotels. I don’t want to get into the specifics of how all that works, but it’s worked pretty well—for the most part, it’s worked pretty well.

But the situation is markedly different now. Now, my personal view is that MIQ was a very reasonable limit on the right 18 months ago; it probably even was at the start of this year. But now we find ourselves in a situation where we’re in November 2021, and 96, 97 percent of the people coming through MIQ are fully vaccinated and they pass pre-departure tests, because the Government put in place that requirement in, I think, December last year, January this year, so that minimises the number of people with COVID coming in. So the situation has markedly changed now from what it was when MIQ started. The judgment of His Honour Justice Venning in the case of Bolton v The Chief Executive of Ministry of Business, Innovation and Employment, and the director-general as a second respondent, is a very, very interesting one—[Time expired]

Oh, thank you, Madam Chair. That was very interesting, what my colleague Chris Bishop was about to embark on. Hopefully, we’ll hear the end of that story in another call, but I want to talk particularly about clause 7 in the bill. I want to point out to the Minister in the chair, Chris Hipkins, that on the weekend I met Rob Peach. Rob Peach is an immunologist based in San Diego. He has a lot of drugs to his name that he’s developed, particularly around multiple sclerosis and those sorts of autoimmune diseases. He and his wife came out to New Zealand. His issue with managed isolation and quarantine (MIQ) was that he’s triple vaccinated—fully vaccinated and had a booster; and, by the way, in San Diego COVID is now the disease of the unvaccinated. He couldn’t understand why they needed to go into MIQ, but further to that, he said the most unsafe he was—the most unsafe—was on a bus from Auckland to Rotorua to go into MIQ. He said that the ventilation was totally inadequate on that bus, totally. I mean, this guy knows what he’s doing. He understands this. He said it was appalling, so that if he was ever going to catch COVID, it would be on that bus going to MIQ, penned up in a bus with inadequate ventilation, shoulder to shoulder with other passengers.

So my question around the MIQ facilities is: does clause 7 extend to the safety and adequacy of the transportation of people to and from MIQ facilities? I think that seems to be a gap. If you would—not you, Madam Chair, of course, but if we were to think about this—and certainly in business you’d go do a gap analysis around the whole facility—that would be the first thing you’d identify. Where’s the weak point? Oh, it’s the bus. Well, what are we going to do about the bus? Well, you’d figure that out, wouldn’t you? Then then you’d start to think, well, hang on a minute. Someone who’s triple vaccinated, and they’re a New Zealand citizen—actually a philanthropist as well—comes to New Zealand, gave some money on the weekend to an aquatic centre that’s just opened in Kaikōura, where he grew up, went to school. Why is a person like that in an MIQ facility when there are gang members isolating at home that have COVID?

I’m not sure if the Minister is aware—this is another question for the Minister. Is the Minister aware that gang members tend not to follow rules? Is the Minister aware that gang members have been riding past the so-called roadblocks in Auckland and not being asked for their papers, whereas law-abiding citizens who are double vaccinated wait patiently in a line and then they have to get to the front and show their papers, show they’re checked—

💬 Simeon Brown: Yes. Some of them get turned back.

Some of them do get turned back, while the gang members ride past oblivious, and I understand the police have been told not to chase them, just let them go. So that’s another gap in the system, Minister. Is there anything in these COVID orders that will say, “You must stop the gang members—nobody gets through. Nobody gets through without having their papers checked.” Actually, I don’t think we should have that, but that’s my personal view, and I’m hoping in time that this Government comes to its senses and puts some decent rules in.

So, Minister, you’ve got a couple of questions there. I can see you’re furiously writing away there and thumbing through the book, looking up—“gang” starts with “g”. Just go through that and see: are we stopping them, Minister? Are we? Because we know that they’re not—they’re not being stopped. If they want to go past, they just sail on by. Isn’t that a gap in the system? That also starts with “g”—have a look at that. But why are we having fully vaccinated, triple vaccinated New Zealand citizens locked up in MIQ and putting them at risk in a bus full of people, an inadequately ventilated bus, taking them from the airport to MIQ facilities? It’s crazy. It doesn’t make sense to anyone, and I just wonder who is making these decisions, because, quite frankly, in the private sector they would’ve lost their job long ago.

To work my way through the various issues that have been raised at the moment, there are no provisions in the bill that relate to gangs specifically.

In terms of the transport to and from managed isolation and quarantine (MIQ) facilities, the bill does provide further clarity around the ability to require people to comply with the public health measures put in place. They’re to keep them safe whilst they are in transit. I can confirm that we use buses because the gap between Auckland and Rotorua is a long way to walk.

In terms of the other issues that have been raised, Erica Stanford raised issues around why the Government’s not removing MIQ requirements. Nothing in the bill prevents the wind back of MIQ requirements when that is justified.

In terms of the issues from Chris Bishop around compliance with the New Zealand Bill of Rights Act, the Government has taken the view, which has been supported by the courts, in many of the court cases raised so far and I’m aware that there are several of them ongoing, that the requirements around MIQ are a justified limitation where there are public health grounds for them to be in place. Now, where there are not, of course, then nothing in the bill prevents the Government from winding back when that advice changes.

In terms of David Seymour’s question around why a requisition power is needed, the existing legal framework provides the ability to requisition some things but not others. So the Director-General of Health, the Government, those leading the pandemic, for example, could requisition a building for the purposes of treating a patient but couldn’t requisition the use of a laboratory for the purposes of processing tests. So there’s an inconsistency in the legislation around what can be requisitioned. There is a gap, in other words, and this addresses that gap.

In terms of why we’re not being more specific about the circumstances under which it may be required, one of the realities of dealing with a global pandemic is you don’t know what you don’t know, and we don’t necessarily know what situation we may be faced with in the future. The Act as it exists now specifies the criteria on which the powers within it can be used, which is around the global pandemic and around the needs of managing the global pandemic. It is limited to those.

There are safeguards in place. Orders made under the Act need to be endorsed by the House of Representatives. As Minister I am ultimately accountable for any such orders that are made under the Act, so there is a check there in the sense that I as the Minister have to sign off on the use of those powers. I am accountable to the Parliament. Orders that I make under the law have to be confirmed by the Parliament. My ability to issue those orders as the Minister responsible for that has to be regularly renewed by Parliament.

This bill extends the life of the Act but it will still have to be regularly renewed by the Parliament, and when it is no longer required, of course, the Parliament won’t renew it and therefore all of the provisions enacted underneath it will disappear at that point. One of the reasons that we are seeking to extend the Act for a reasonable period of time, or extend the ability of Parliament to extend the Act—I should be very clear about that; this doesn’t automatically extend the Act until the middle of 2023. Parliament will make that decision on a regular basis as to how long it is extended for. This extends the maximum time Parliament can do that. And the reason for that is that many of the transitional provisions that will be required, as we move into different phases of the pandemic, will still require the powers under the Act—for example, the power to require pre-departure tests, the power to require people to be fully vaccinated on arrival in New Zealand. Those things rely on this Act continuing to be in existence. If the Act disappeared we wouldn’t be able to do those things. The power to require people to self-isolate at home, if that is justified under public health grounds, that requires this Act in order to do that. So that is why we are continuing the Act. It does not mean that the Act will continue to be used with all of the existing orders still in place. Orders will be removed when they’re no longer justified.

Thank you, Madam Chair. I’d like to go back to the question in relation to Supplementary Order Paper 80 in my name and actually address some of the comments that the Minister has made.

But, before I do that, I’d like to commend my colleagues who have actually mentioned the issues of managed isolation and quarantine (MIQ) and also migrant families, and also the travelling by bus that Stuart Smith talked about, because many of us do, in fact, have family who are stranded all around the world.

I personally have a family member who’s in New York, and we only get together at Christmas-time. My brother and his family can’t visit. He is a New Zealand citizen. Even my eight-year-old nephew in New York has been vaccinated, and that is what is actually happening. But because they can’t even get an MIQ slot at the moment, we can’t even plan Christmas together. I haven’t seen them for many years. My father is elderly, he’s now stuck in Korea, and that is because I have told him I don’t want him to go through MIQ, being elderly and with health conditions that might put him in danger; at risk of contracting in MIQ. He’s double vaccinated. He hasn’t been home for more than two years. It’s been, gosh, July of 2019—that was the last time that I saw my family.

I think there are many risks and there are many questions. One of the reasons why I keep asking, in terms of the security of the privacy of the COVID-19 tracer app is because there are many questions that people do, in fact, ask, on many issues, including things like: what happens if we move to the traffic light system? If we do the quick response (QR) code and if we keep a record of people coming in, and if we do, in fact, go to the red light of the traffic light system, does that mean that having hand sanitisers and wearing personal protective equipment, and preventing people who actually have COVID or have tested positive, who are not double vaccinated from using some services including hairdressers—is that enough, or is there more that the Government actually requires? And there isn’t enough information, it seems, going to the public to make very clear as to what is required of them, just like this privacy issue.

Speaking to the Supplementary Order Paper 85 in my name, can the Minister please outline why he thinks that the short recommendation by the Health Committee in proposed new section 34A, in clause 24, is sufficient for addressing the privacy concern raised by stakeholders and members of the public regarding the COVID-19 tracer app. I think he indicated that he does not support the Supplementary Order Paper in my name, and if that is, in fact, the case, I’d like to ask him: why not? Is it purely because it something that is recommended by an Opposition member, or does he believe that my more comprehensive Supplementary Order Paper does less than what the actual report back from the Health Committee actually means it does? He actually said that there are no concerns in terms of privacy, because the Government actually promises to keep that data secure, but I’d like to remind the Minister that, in August, in Indonesia, the Health Alert Card—it was reported in Reuters on 1 September—actually exposed the data of over 1.3 million users due to a lack in proactive updates in the app.

They also had a situation with Singapore—and it was reported by the BBC on 5 January 2021—as it has allowed COVID tracing data for criminal investigation, despite public officials previously explicitly ruling that data would not be used for anything other than the virus tracking.

Also, the Australian state police forces were using QR code scanning data—reported on 6 September—in the context of a criminal investigation, prompting a law reform to be passed in Australia.

If that is the case, Minister, how can we be certain? When other countries promised to actually keep data secure and haven’t, how do we trust that the New Zealand Government would? I think we need to make sure that it is, in fact, secure and does—I’m not so sure if the Minister actually heard. Is he just opposing this Supplementary Order Paper in my name, No. 85, purely because I’m an Opposition member, or does he believe that currently, it goes as far or further than what the Supplementary Order Paper is actually trying to promote?

Thank you, Madam Chair, for the opportunity to take a call on this COVID-19 Public Health Response Amendment Bill (No 2). For the public listening at home, this piece of legislation extends the Government’s emergency powers substantially in a number of areas for an extra 12 months through to May 2023. That is something which I think needs to be noted to start with.

The main contribution I want to focus on, though, is clause 12, which relates to checkpoints, which is something which I know many Aucklanders have a very strong interest in at the moment, due to the announcement yesterday that we’ll finally be allowed out of Auckland from 15 December, with the requirement to have either a vaccination certificate or to be able to produce a negative test within 72 hours.

Whilst that decision seems to be pragmatic of sorts, the real question is around how these checkpoints are going to be managed. The question I’ve got, based upon clause 12, is that this bill now means it’s no longer just going to be the police who could be manning these checkpoints but it could be a Māori warden, it could be a nominated representative of an iwi organisation, it could be a Pasifika warden, or even a community patroller.

So my question to the Minister in the chair, the Hon Chris Hipkins, is: will people leaving or coming into Auckland over these summer holidays potentially be stopped at a checkpoint or be stopped on the side of the road by any one of these four different groups either leaving or coming into Auckland?

💬 Hon Member: Which clause?

Clause 12. Clause 12 gives the power for the enforcement officers to now be a whole range of additional categories under this piece of legislation. I’m not sure if the Minister’s even read clause 12; he might like to take a quick look at it—clause 12.

It says here in clause 12 that this means they will be able to put these people in place—the commissioner will be able to recognise these people as enforcement officers under this piece of legislation. And so we’ve got an amendment on the Table which, effectively, removes this increased power to be able to put in place a whole range of other people to be able to enforce these provisions.

I can understand, potentially, why the Government’s wanting to do this, because the police are stretched. There are 500 police who are either in managed isolation and quarantine or sitting at the boundary checking people as we speak. Just imagine how many more police are going to be needed to be able to do those jobs over a very, very busy summer, when tens of thousands, hundreds of thousands, of Aucklanders who have been locked up for months and months and months will want to be heading away on holiday or going to reconnect with family and friends.

So I would like the Minister to please explain why this clause is needed, why the additional range of enforcement officers are required, and what use he is planning to utilise these different groups of people to be able to enforce restrictions under this legislation. Will these newly appointed enforcement officers now be used at our border boundaries, in checkpoint style? Will they also be entitled to stop people, potentially, in other areas around New Zealand—for example, in the Coromandel—and ask people walking down the street, “Are you from Auckland? Have you got your vaccination certificate? Have you got proof of address?”

These are very real questions which I think New Zealanders would like to know the answers to, because this is a significant extension to the powers. I think the principle which most New Zealanders would agree with is that when it comes to enforcement of the law, in general, particularly powers which are included in this public health response legislation, it should be the police, and most people would expect that if they’re going to be fined a thousand dollars for not complying, it would be the police who would be enforcing those powers, issuing the infringement notices, stopping them and potentially turning them back if they don’t follow. I think most New Zealanders would be saying, “Actually, it’s the job of the police to be doing that.” It’s not the job of a community patroller or a Māori warden, as good as they are, as important as there role is in the community and in society and what they do.

I mean, these people all have an important role in New Zealand, and I respect the role that they have, but when it comes to enforcing pandemic powers, which are incredibly, incredibly powerful, which are unheard of in terms of domestic restrictions—you know, stopping people travelling around their own country and potentially fining them or turning them back—those are significant powers and I think most New Zealanders would say that’s the role of the police.

And so I think the Minister needs to take a call and explain very, very clearly what he plans to use these new enforcement officers for, and what they will not be used for, and particularly, when it comes to these new summer restrictions, whether or not they will be used on the boundary, or will it just be our police? And can he please answer that question—both going north of Auckland and also south of Auckland. What are the plans? Will it just be the police or will there be other organisations or groups under this particular section also being used to enforce these powers, and what will New Zealanders be expected to see on our roads over summer?

If I could just briefly respond to Melissa Lee’s questions earlier. I do acknowledge that people want absolute certainty that their information cannot be used for any purpose other than for which it is collected, and the overseas examples that she has highlighted, I think, do underscore the public’s desire for clarity there, and that is why the bill specifically states now, following the amendment by the select committee, that the information cannot be used for any purpose other than that purpose for which it was collected.

In terms of the comments raised by Simeon Brown, I would refer him to section 22, subsection (5), in clause 12, and the second part of that, “if acting under the supervision of a constable.” These powers will only be able to be exercised by the police and other people working under their supervision. So the police will still be the ones responsible for ensuring compliance. In terms of where they can be used, I’d refer him to subsection (3A), “For the purpose of enforcing or monitoring compliance with a COVID-19 order that restricts movement by persons with or without vehicles, a constable may stop …”, etc., etc. It makes it absolutely clear that it is the police that are responsible for enforcing the orders, but at the moment the current practice is to use additional people to help, including our military, including Māori Wardens, including community patrols, and including some iwi representatives who have offered to help, to do some of that work. But it is ultimately the police that are still responsible for that. Now, I think that the provisions in this bill are very pragmatic and sensible, because it means the police will still be in charge, the police will still be ultimately accountable for what happens, the police will still make all of the decisions around enforcement of the orders, but it will free up police from some of the more menial processes involved in enforcing these orders, so that they can actually do their core job which is to fight crime.

Thank you, Madam Chair. Just in relation to that last comment by the Minister, is he able to give us an indication of what that supervision actually means? Does it mean that a sworn police officer needs to be at that border actively monitoring the community patroller, or whoever’s there? We’ve had the situation in the past where the police actually haven’t been there. So does supervision mean they have to be there or are they just in charge from a distance? That’s something that we need to know.

I want to go back to what I was talking about earlier, and what Chris Bishop also mentioned as well, on new section 32N, in clause 22, around the New Zealand Bill of Rights Act and New Zealanders’ rights to come home. The reason that I want to question the Minister around this is because he stated in an earlier answer that restricting Kiwis’ rights to come home under the New Zealand Bill of Rights Act is a justified health response. Chris Bishop’s argument was that that may have been the case earlier, but is it still the case now? Now, the Minister said that he’d had advice that says that it is a justified health response. What I specifically want to ask the Minister is: has the Government, has he, seen Crown Law advice specifically relating to the case of Bergen Graham, who was the woman trapped in America who could not get a managed isolation and quarantine (MIQ) emergency allocation because she had a high-risk pregnancy. She couldn’t get into New Zealand. She had no ability to have the baby there, because she didn’t have health insurance and she had no visa to be there. She was there illegally; couldn’t get an MIQ spot. She took the case to court with the help of a number of pro bono lawyers, and immediately she got an emergency MIQ spot.

So the question is: what was the advice? This specifically relates to new section 32N, in clause 22 of the bill, where the Minister has to take into account the New Zealand Bill of Rights Act. Has the Minister seen that Crown Law advice on the specific case of Bergen Graham? Because it’s very curious that she got an emergency spot very soon after bringing that court case. I suspect that the Crown Law advice to the Government and to the Minister specifically said that the Government are skating on thin ice and, in fact, that this is in contradiction to the New Zealand Bill of Rights Act—people’s right to come home. This relates directly to new section 32N.

I want to know clearly from the Minister: did he receive Crown Law advice on Bergen Graham’s case? What did that Crown Law advice suggest? And does that sit with what he said earlier that, in fact, MIQ is a justified health response in stopping Kiwis coming home, in contradiction to their rights under the New Zealand Bill of Rights Act? I want to know what that Crown Law advice said, because we’ve heard that that Crown Law advice did say that this is no longer legal, when it comes to that Act. Has the Minister seen that piece of advice? What did it say? And was that the reason that Bergen Graham was very quickly allocated an emergency spot in MIQ? I think the Minister needs to answer those questions.

Thank you, Madam Chair. I was beginning to believe the narrative that women over 60 are invisible. Thank you, Madam Chair—I’ve only been here for a few minutes, though. I’m wanting to ask a question of the Minister regarding section 11, inserted by clause 7, around managed isolation and quarantine (MIQ). A number of my colleagues, including my colleague Erica Stanford, have said we accept that MIQ was absolutely necessary in terms of securing our health services in the early stage of the pandemic. But what I want to ask the Minister is: does he believe now that continuing our MIQ is helping or, indeed, heeding our health services?

I want to give him three examples which may assist his thinking on this. In August, we had the unfortunate situation where our head of obstetrics in Invercargill hospital had to go back to the States. His mother had, sadly, died and his elderly father was terminally ill. He went over expecting that, as a critical health worker, he would be able to get back into the country, and the DBH gave him leave expecting that. Sadly, it took three attempts and considerable publicity from myself and Joseph Mooney before he was able to be granted a critical worker MIQ spot to come back into the country. Our maternity services were at that stage in danger of being downgraded, and pregnant women with complications were going to have to be transferred out of Southland. I was particularly aware of that because I had a daughter heavily pregnant at that time. So that was one example.

Last week, I spent considerable time out and about with rural GPs, and I want to acknowledge the tremendous work our rural GPs and our nurse practitioners are doing out in the rural sector and the great sense of nervousness that they have of how they will be able to cope when COVID becomes more widespread, because our rural GPs and our nurse practitioners are under an incredible amount of pressure as it is. In fact, a number of our rural GPs have been trying to get locums in to assist them but because of the MIQ situation have not been able to get in a locum for up to 18 months.

The third example I want to give the Minister is an ICU nurse in Invercargill, a recent migrant who was a very valued ICU nurse. She had a partner in Sydney who was an engineer, and Southland was looking forward to not only keeping a very valuable ICU nurse but gaining a well-qualified engineer. Sadly, because he couldn’t get an MIQ spot, she decided to go over to Australia and join him.

So here we have three examples where the MIQ system has impacted significantly on our health services in New Zealand. At a time when we have over 3,000 people with COVID isolating at home in New Zealand, here were people who were double vaccinated and would have been assisting our healthcare system in New Zealand being denied access to return to or come to New Zealand. So I want to ask the Minister whether he considers that section 11—and all the infrastructure detailed in that section around MIQ and how MIQ will be run continuing on, and with the provision of it being able to continue right through to May 2023 with the extension in this amendment—may well now be actually hindering our health system in New Zealand rather than helping it. I would appreciate his answer to this. Thank you, Madam Chair.

As I’ve repeatedly said during this debate, the provisions in this bill do not prevent the removal of managed isolation and quarantine (MIQ) requirements for people coming into New Zealand. They simply state that if MIQ is going to exist, then it gives some ability to enforce the MIQ requirements or enhances the ability to run MIQ efficiently and smoothly and consistent with the very best public health advice.

It doesn’t stop us winding back the MIQ requirement or the requirement for people to go into MIQ when they arrive into the country. As the Government has already indicated, that is likely to happen progressively over the next couple of months. We’ll be seeing more and more people isolating at home rather than through MIQ. This bill does not, in any way, prevent this from happening.

But I would note, for members who simply say we just do away with it completely and do it right now, that even when we reach the point where the majority of people are isolating at home or even when we reach the point where some people won’t have to isolate at all—it is quite possible, in the future, that we’ll reach that point—there’s still likely to be a need for MIQ capacity for people coming into the country of some sort.

We have to think about what we do with those who are not vaccinated, for example. So if the requirement is for people to be fully vaccinated, what about those who have a right to enter the country but aren’t fully vaccinated? What about those who are coming into the country potentially with COVID-19 but are entering the country on justified grounds? We still need to have an ability to run a system to support those people.

So the continued refinement of the MIQ system—and I’ve repeatedly said this during the debate—does not mean that it will continue to apply to everybody coming into the country.

I move, That the question be now put.

Thank you, Madam Chair. I’d like to start off by thanking the Minister in the previous answer to questions that I had in relation to the example that I provided. So going back to Supplementary Order Paper (SOP) 85, in my name, I just want to ask the Minister, noting the new section 34A, inserted by clause 25A, as proposed by the Health Committee’s recommendation, how would that section effectively deal with the examples that I provided? And just to update the members, I’ll repeat them: in August, the Indonesia Health Alert Card—and it was reported on Reuters on 1 September—exposed the data of over 1.3 million users due to a lack of a proactive update of the app.

The other example I gave was that Singapore—it was reported in the BBC—had allowed COVID tracing data for criminal investigation despite public officials previously explicitly ruling that data would not be used for anything other than the virus tracking.

The third example I gave was the Australian state police forces using QR code scanning data in the context of a criminal investigation, which prompted a law reform to be passed. So I would appreciate if the Minister could answer how new section 34A could actually address these concerns, and whether that will actually fix the problem.

There is another thing that I would also sort of like to ask the Minister. I note that in the primary Act, the COVID-19 Public Health Response Act 2020, section 9(ba) states that the Minister must be satisfied that the order does not limit, or is a justified limit on, the rights and freedoms in New Zealand’s Bill of Rights Act 1990. So why does the Minister believe new section 34A is needed, if that is the case, as recommended by the Health Committee, if he believes it does not go far enough to protect the data?

The other question that I have is why has the Minister not supported further subsections to ensure that no order could affect individual privacy and information privacy principles, as set out in section 22 of the Privacy Act 2020, that my SOP would protect by amending section 9(ba) with a new subsection (2)? So if the Minister could actually address that, and, also, why has the Minister not supported further subsections to ensure that no order could affect the immunities and privileges that are recognised in Subpart 8 of Part 2 of the Evidence Act 2008 that my SOP would protect by amending section 9(ba) with a new subsection (3)?

I’ll go through this for a fourth time now: the reason that the Government is not supporting the member’s Supplementary Order Paper is that we believe that the new provisions inserted in the bill, combined with the existing protections of the Privacy Act, are sufficient. But, for the benefit of the member, I’ll read the relevant section to her—34A(1)—“Despite anything in the Privacy Act 2020, personal information about an identifiable individual that is provided or obtained for the purpose of contact tracing under this Act (such as through QR scans or paper-based forms) may not be collected, used, or disclosed by anyone except for the purpose of contact tracing under this Act or for the purposes of the Health Act 1956.” And it goes on further to say that a person who intentionally fails to comply with that commits an offence, and that that offence could result in a fine not exceeding $12,000 or six months’ imprisonment. So we have a very significant protection regime in there to ensure that the information collected is only used for the purpose for which it is intended. The Privacy Act has comprehensive provisions in it. The overall response to COVID-19 regularly touches on privacy concerns, and, in fact, they were the subject of questioning in the House yesterday when it came to the sharing of people’s vaccination information. That has been the subject of court cases at the moment, and the law there is clear.

Thank you, Madam Chair. I want to drill in a little bit into the Minister’s responses to Simeon Brown’s questions around clause 12, because I think this is a significant issue of potential concern. We have seen a number of images of roadblocks that have been staffed by people who are not members of the New Zealand Police; in fact, on many occasions, they haven’t been sanctioned by that, and this is going to tidy that up, on one level. But I think it also raises a number of questions.

The Minister rightly points out subsection 5 of clause 12: that an enforcement officer may also stop personal vehicles, but only if acting under the supervision of a constable. We don’t have “supervision” defined. I think it’s quite important to reflect on where the term “supervision” is used in other legal situations. We have it in, for example, a corrections sense, when somebody is sentenced to supervision. In our medical and healthcare system, we have a number of trainees that, from time to time, might be practising under supervision. But that does not mean that the person charged with supervising them has to be physically present at that time. Even if one looks at the plumbers and gasfitters legislation, where trainees are able to practise under supervision, the qualified plumber doesn’t need to be there at the time.

Now, the Minister has quite glibly said, “Oh, well, of course, there will be a police officer there.”, but that’s not actually clear in the legislation if one takes a broader definition of, as it is in other laws, of what “supervision” actually means.

That then leads on to the question of: what are we supervising and how qualified and trained are the enforcement officers going to be? Yes, they may be members of the armed forces. Yes, they may be Māori wardens or Pasifika wardens—that’s fine. But what specific training are they going to receive in order for them to be able to exercise what are significant powers and constraints on peoples’ freedom of movement? So, I think, the House, in order to satisfy itself into what it’s actually sanctioning here, needs to have a sense of what sort of training is going to be undertaken.

If there is a physical police presence, it’s important to understand what the ratio of sworn officers to enforcement officers will be. One could envisage a scenario at the border, in the lead-up to Christmas, where the police, frankly, do have other things to do and—some would argue; I would—better things to do, that this law could be complied with with one sworn officer and dozens of enforcement officers. So is that an adequate level of supervision, given the powers that are being conferred?

The fourth question I have is: to what degree does this confer a power to arrest or detain? It may have the power to detain, and that in itself is a significant thing. Will it have a power of arrest? If there is an enforcement officer on the boundary who stops a vehicle, checks a vehicle, and then the persons inside the vehicle become non-compliant, what further powers will the enforcement officer have? Because, in law, the person inside the vehicle has complied, chooses—perhaps of its own volition, rightly or wrongly—to decide it has met those requirements and goes to move off, will the enforcement officer have the power to physically detain a person against their will?

These are really important questions. I want to hear from the Minister on this. What is his definition of “acting under supervision”? What will the training requirements be? What will the ratio of sworn officers to enforcement officers be? What powers of arrest or detention will they have?

Thank you very much, Madam Chair, and I echo the comments of my colleague Michael Woodhouse. I would like to speak to the tabled amendment in my name, which is a very important amendment. What I’m proposing is that after clause 9, we insert, after new section 12(2) of the current Act, a new section 12(2)(d). And just by way of context, section 12(2) is the power for the Minister to make COVID orders. That’s the operational provision of the Act. That’s what gives the Minister the power to do a whole, actually, massive swathe or suite of things. I’m proposing that what he will not be allowed to do now is make orders in relation to fully vaccinated international travellers entering New Zealand—very, very simple; very, very simple amendment. It will stop the Minister making orders in relation to fully vaccinated international travellers entering New Zealand. Now, what that means is that orders will not be able to be made for fully vaccinated travellers to this country. This will start to dismantle and erode the managed isolation and quarantine (MIQ) system. What it does is place restrictions around what the Minister is not allowed to make an order about.

We’re saying, on this side of the House, that the time has come to start dismantling MIQ, because full vaccination—the evidence is now extremely clear—provides enormous benefit to not only individuals who receive it but also the community, and what we’ve seen is that the risk of fully vaccinated travellers entering New Zealand markedly diminishes because of that vaccination. We’ve got the data now.

💬 Hon Chris Hipkins: What would you do with the unvaccinated ones?

Well, in relation to unvaccinated—and the Minister said it before: there has to be provision of MIQ facilities available. We had this long argument last night—well, not long, but we had this argument last night in the House. I think there’s widespread consensus that there should be some quarantine facilities, and, on this side of the House, we think there should be purpose-built. If the Government had done it a year ago, they’d be opening now—maybe; although the way this Government does things, probably not, but we had the quarantine facilities. But for fully vaccinated travellers—and we’ve now got the data.

So here’s the thing: the Government only started collecting the data on the vaccination status of people who arrive into MIQ from 23 August. One might well ask why the Government didn’t collect that data earlier, and I’ve got the written question answers from the Minister. It wasn’t that they didn’t ask—every now and then the health officials would ask, but they got collected—and I can’t believe this is true, but it is—in just sort of a general, all-purpose, any-other-section sheet on the returnees’ health forms. The Minister says it will be too difficult and cumbersome to go back through every form that people filled out, to figure out if they’ve recorded their vaccination status or not. I accept that that would be—I mean there’s 130,000, or something, people who have been through MIQ in that time, so it would be ridiculous to figure that out. But that doesn’t answer the question as to why the Government only started asking people from 23 August onwards, and that, actually, the tragedy of this whole situation is that if we’d asked people about vaccination back in maybe March, April, May, or June, rather than August, we could have made changes—we could have made the changes that the Government’s making now, in terms of halving the time in terms of MIQ from 14 days to seven days. We could have made that earlier, and thousands more people could have come home.

The other point is the emergency-allocation process, which is a debacle. Still, today, we see, in the paper, examples of people who have been granted an emergency allocation into MIQ, but they can’t get early release to come out of MIQ, even though the reason they got the allocation in the first place is because of compassionate reasons. Now we find they can’t get early exemption to leave. Again, if we’d taken account of vaccination status earlier, then we could have made some changes to that process.

So this is a very simple amendment. It will prohibit the Minister from making orders in relation to fully vaccinated international travellers entering New Zealand. What this will mean is that full vaccination will give huge benefits to people in terms of travel. There are 240,000-odd people who are registered in the MIQ system who have never received a spot. Again, we have this from the Minister himself, in terms of written question answers. It’s around 240,000 people who are registered, who’ve never received a spot. People, I think, get a little bit confused by it, or at least misled, by the MIQ lottery numbers that appear whenever the Government allows the lottery to take place, because there’s anywhere between 25,000 and 35,000 people in the lottery on a regular basis. But what that doesn’t capture are the people who are registered who never bother to enter, because, you know, they see the time frames and that’s not available for them or, actually, just the logging in on Twitter or Facebook, and they see everyone else in the lottery posting up and saying, “I’m number 25,043.”, and, you know, they’ve got no hope—they’ve got no hope. Even if they are a fully vaccinated Kiwi in Queensland, they’ve got no hope. So they just give up.

So there’s 240,000 people in the system who never bother to actually go into one of these regular lotteries. Even James Shaw had to do it. James Shaw had to go into the lottery to go to Glasgow. I think he got a special spot in the end, but he participated in the lottery, and I asked him in a written question, “What number did you get to?” He claimed he didn’t remember, which was interesting—but anyway. But that was interesting. So James Shaw’s sitting there on his laptop, trying to get all the way to Glasgow for the international COP26, and James Shaw had to log in. He was looking to see—up there in his Beehive office with his staff around him. Nine o’clock rolls around. “I’m registered in the system.”—the Hon James Shaw, Minister of Climate Change. Off he goes into the system and off it pops, “Oh, you’re number 17,043.”—no chance, or whatever it was. But that’s the stupidity of that situation. In the end, he got a special slot.

But, anyway, this amendment would mean James Shaw wouldn’t have to get a special allocation from the Prime Minister or the Beehive through the group allocation system—it would mean he didn’t have to do that. James Shaw could go to COP26; happy days. It means the Prime Minister could go to Europe because she’s a fully vaccinated traveller. So the European trip that got cancelled at the last minute, she could go without being worried about taking up a slot for somebody else. Damien O’Connor went on a trip. He didn’t get much flak for that because he was doing God’s work during the free-trade negotiations, which has bipartisan support—but Damien O’Connor could go without worrying about it. And I’ll tell you what else it could do. It’s not about the Government, actually. It’s not about Ministers; it’s about Kiwis and it’s about New Zealanders travelling overseas to Australia.

I’ve got a similar amendment, which I’ll talk to later—a similar amendment in relation to the trans-Tasman bubble, which the Government will not make any move on before Christmas for reasons best known only to themselves—not even on a state-by-state basis. Queensland, for example, Tasmania, Western Australia, and ACT—where, yeah, there’s a little bit of COVID, but a very, very small amount. The ACT is 97 percent vaccinated and the Government’s position is that—it’s a jurisdiction; it’s not a state, better get that right—a jurisdiction of Australia, the ACT, that has a 97 percent first dose vaccination rate, we can’t have a bubble with. Or Queensland, where there is very little COVID—the vaccination rate’s lower there; I accept that, but there’s very little to no COVID there, and tens of thousands of New Zealanders live in Queensland and have family and whānau over there. The Government’s position is that we can’t even have a state-by-state bubble with Australia before Christmas

So all of that will be eroded and evaporated with this amendment. It’s about the right of Kiwis to come home, and this amendment is consistent with the arguments that Erica Stanford and other colleagues have made around the Bill of Rights Act, because there is a right in section 18 of the Bill of Rights Act for New Zealand citizens to return to New Zealand. I accept the argument that that was a justified limit under section 5 18 months ago; very few people think it is a justified limit these days in November 2021, heading into December 2021, with the benefits of full vaccination and the risk calculus that exists in New Zealand right now.

I refer the Minister to the very good opinion piece by Professor Andrew Geddis of the University of Otago law faculty, who has written about this particular issue. He makes the same argument I do, which is that MIQ was justified last year, but it is increasingly difficult to justify the restrictions in November 2021 once you take into account vaccination and also once you take into account the fact that COVID is here. Elimination is gone. COVID is here; it’s not going away. The Government now accepts that and the Minister has been, I actually think, refreshingly frank, about the fact that COVID is here and it’s not going away and it will spread. He’s been refreshingly frank in a way that I wish the Prime Minister would be in relation to those salient facts. So, when you take into account the fact that COVID’s here and the Bill of Rights Act and vaccination, it’s hard to justify not supporting this amendment, and I invite the Minister to support it.

I move, That the question be now put.

The question is that Melissa Lee’s amendments set out on Supplementary Order Paper 85 be agreed to. All those in favour say Aye, to the contrary No. The Ayes have it.

The question is that David Seymour’s amendments set—

💬 Willow-Jean Prime: Sorry, Madam Chair. You said that the Ayes have it. Party vote.

CHAIRPERSON (Hon Jenny Salesa): My apologies. The Noes have it.

Point of order. Madam Chair, I just want to express some consternation about what just occurred in that vote. You declared a vote on the Supplementary Order Paper as a Yes vote, then, based on some interference from the Labour Party, you then changed the vote. And I’d like some explanation why, because I think that is a very, very serious matter. And, if I’m not satisfied, I will seek to have a recall of the Speaker.

Speaking to that point of order, the declaration of the Chairperson as to whether the Ayes have it or the Noes have it is an indication to the House of how the Chair interprets a vote, and the Chair is at liberty to make that declaration however they choose to. If it is then contested, it is ultimately a roll-call of party votes that determines the matter, and that is exactly what happened. Members regularly contest the view of the Chair. The Opposition contests the view of the Chair as to whether the Ayes have it on a very, very regular basis.

Speaking to the point of order, that is not my recollection of actually what occurred. The Speaker—the Chair, I should say, sorry; we’re in committee—had expressed that the Ayes had it, and Melissa Lee’s Supplementary Order Paper (SOP) should then stand. There was no request for a party vote. The Chair had expressed that the SOP had been voted in favour and carried on the voices, and, unless I am satisfied to a high degree that there was not interference and that the Chair did not accept that interference and then change the vote, I will be seeking a recall of the Speaker.

Speaking to the point of order, I did request a party vote.

The party vote was actually called for. It was my mistake saying the Ayes have it, instead of saying the Noes have it.

So that’s a mistake. So I’m going to seek a recall of the Speaker. That is an egregious issue that’s occurred in this committee stage, on a very significant piece of legislation, and I would like the Speaker recalled.

💬 Hon Chris Hipkins: You have to move that the Speaker be recalled.

💬 Chris Bishop: You have to move it.

I move, That the Speaker be recalled.

The question is that the motion be agreed to. Those in favour say Aye; to the contrary, No.

💬 Hon Louise Upston: Oh, borderline call. Be very careful with that.

💬 Hon Chris Hipkins: You’re wasting the Speaker’s time.

💬 Hon Louise Upston: No, the Chair had moved on. This is outrageous. This is a significant piece of legislation, and if Labour are blocking, it is absolutely outrageous. I would be very careful.

💬 Kieran McAnulty: It’s the second time she’s spat the dummy in about a couple of weeks.

On the voice, in terms of the Noes versus the Ayes, the Noes have it. If you’d like to declare a party vote, I can call for a party vote?

Yes, I’d like a party vote.

Point of order, Madam Speaker. I just wanted to bring to your attention some behaviour in the House that I think is totally inappropriate, and that is the National’s whip was taking a legitimate point of order and raising a legitimate concern from this side of the House. The Labour Party’s chief whip came into the Chamber and made what I think was an extremely negative—

💬 Hon Louise Upston: Unparliamentarily.

—an unparliamentarily comment directed at our senior whip. I’d like you to take some action on that, please.

Speaking to the point of order, you’ll be aware, Madam Chair, that all votes in the House are heard in silence. If the Opposition’s acting whip wishes to be respected during that time, then she might want to follow the rules of the House.

Speaking to that point of order, what we’ve seen occur here is that a vote had been taken, and, on the voices, the Chair had declared the vote and moved on to the next Supplementary Order Paper before interference from a Labour member. Now, in terms of parliamentary procedure, I will make zero apologies for taking this seriously. In my 13 years, I’ve never seen a motion to recall a Speaker voted down. So I accept the member’s comment that votes should be taken in silence, but I think the member who is the Minister is charge of this piece of legislation should also respect that this is a very contentious piece of legislation. For the process and the Chair to change direction on an interference from a Labour member is absolutely why there is heightened sensitivity. The recall of the Speaker is not one that is ever, ever undertaken lightly, and so I’m reinforcing my colleague’s request for an apology by the chief whip of the Government.

Point of order, Madam Chair. What we’ve just seen is an egregious breach of the Standing Orders. It is absolutely unacceptable for any member to at any point suggest that a presiding officer’s actions in the House have been as a result of any form of coercion from any members of the House. That is actually one of the most serious breaches of the Standing Orders that any member in the House can do.

CHAIRPERSON (Hon Jenny Salesa): Referring to the point of order from the Hon Louise Upston, it is absolutely out of order to allege interference in the chairing of the House. We also then had a party vote. A member who voted for the declared majority can call for a party vote—for a declared minority, sorry, can call for a party vote. That has happened. The party vote declared that the motion has been agreed to and the party vote has now been correctly recorded.

💬 Hon Members: Point of order.

CHAIRPERSON (Hon Jenny Salesa): The Chair’s ruling is final in this case, the Hon Louise Upston. We shall move on.

💬 Hon Louise Upston: Point of order.

CHAIRPERSON (Hon Jenny Salesa): Is it a fresh point of order?

Yes, it is. For the ongoing order of the House, I would request respectfully that attention is paid to the replay of what has occurred in this committee stage. And I put that request politely.

The question is that David Seymour’s amendments set out on Supplementary Order Paper 88 be agreed to.

💬 Hon Mark Mitchell: Point of order, Madam Speaker.

CHAIRPERSON (Hon Jenny Salesa): Point of order—

💬 Hon Chris Hipkins: There’s a vote in progress, you can’t do it while the vote’s in progress.

💬 Hon Mark Mitchell: Well, are you prepared to hear my point of order, Madam Speaker? I want to go back to my original point of order, which was never addressed.

CHAIRPERSON (Hon Jenny Salesa): Is it about the vote?

💬 Hon Mark Mitchell: No, it’s about my earlier point of order that was never addressed by you.

CHAIRPERSON (Hon Jenny Salesa): We’re actually completing this whole voting process, Hon Mark Mitchell. [Quiet discussion amongst members] Are you relitigating the previous ruling?

💬 Hon Mark Mitchell: No, Madam Chair.

Thank you, Madam Speaker. I’m requesting that my original point of order that I took was never actually responded to or addressed by you.

CHAIRPERSON (Hon Jenny Salesa): Can the member remind me of his point of order again, please?

Yeah, my point of order, quite simply, was that during the period of time when the whip was taking points of order, raising legitimate points of order, the chief whip for the Government came into the House and made some very negative comments and inappropriate comments directed at our whip.

So if the whip actually said something that was unparliamentary against the Opposition whip, can he please withdraw and apologise?

Let’s just get on with things. I withdraw and apologise.

The question is that Chris Bishop’s tabled amendment to clause 9, inserting new section 12(2)(d), be agreed to.