COVID-19 Response (Vaccinations) Legislation Bill

Mōrena mai tātou katoa. The committee is resumed. Members, we are on Part 1 of the COVID-19 Response (Vaccinations) Legislation Bill, committee stage.

Thank you very much, Mr Chair, and thank you, Minister, for being in the Chamber to answer a few questions. The two areas that I want to get into are in regard to clause 4, “Section 5 amended (Interpretation)”, in Part 1 of the bill, and in particular the term “vaccinated”. Why I ask about that, I say to the Minister, is in regards to the fact that the requirements under having to be vaccinated for individuals says that the term “vaccinated” is something that the Director-General of Health will specify. I think most Kiwis out there will be thinking that “vaccinated” means having two doses, right? Yet under this legislation it is now for the director-general to define the term of whether someone is vaccinated.

I think that poses and interesting question, because we’re obviously aware of the need to be double-dosed and that, but we are also now aware of subsequent booster shots that may be required for certain individuals. So taking into account that this legislation is not time-boxed—it is open-ended—and the fact that the reality of the future in terms of the way in which we’re managing COVID within our communities from a vaccination point of view is initially a double dose but then subsequently, potentially, follow-ups, how is this definition of “vaccinated” going to be interpreted by the director-general, and, I guess, how are we going to avoid this being confusing, because, as has been referred to quite a bit throughout, that is one of the big challenges. So that’s the first question I have for the Minister.

My second question is in regards to clause 14, “Section 34A amended (Protection of contact tracing information). I guess why I raise this is that to date the provision of the private and personal information that is within the COVID-19 quick response (QR) scanning app has very much been protected from a privacy point of view. However, what I acknowledge here is that now, under this bill, aspects of that look to be changed, and I again refer to section 34A(1)(a), (b), and (c). In effect, the information stored or disclosed in terms of the QR scanning app or paper forms can be used for enforcement of the Act or for a COVID-19 order, including for the purposes of proceedings against a person for non-compliance.

So I’d like the Minister to provide some explanation in terms of what actually in that regard is changing. Is people’s personal information still private in terms of when they scan in their QR code, or is the reality now that the Government is looking to broaden their ability to use that personal information to undertake enforcement activities and prosecutions, and how far will that go in terms of what looks in effect to be potentially a track and trace system? I’m really looking for some clarity from the Minister in that regard.

So the two areas—just so that he’s clear—are section 34A in clause 14, in regards to privacy, and the other element is in terms of the interpretation under section 5 in clause 4, around a vaccinated person.

Thank you, Mr Chairman. I have a couple of questions for the Minister for COVID-19 Response, the Hon Chris Hipkins, just to help the House. In respect of the date of the New Zealand Bill of Rights Act vet that was criticised by Opposition members yesterday, is the Minister aware that New Zealand Bill of Rights Act vets have to be changed every time the version of the bill changes and that, accordingly, the date on the final New Zealand Bill of Right Act vet reflects the date of the final version of the bill rather than earlier versions of the bill—not that the New Zealand Bill of Rights Act vet was, as has been asserted by others, just sort of whipped off at the last minute?

The second issue I would like a comment from the Minister on is in respect of the issue of access to the courts. Now, an issue has been raised, quite properly, by the Opposition about whether we’re contemplating using vaccine rules imposed by central government in respect of access to the courts. This is a very, very important issue, because it’s very important that we both maintain public confidence in the court system, including the ability of the courts to scrutinise the actions of the executive, independent from accusations that they’re somehow in league with the executive in respect of the issues of access to the courts and vaccines.

The importance of this goes to the integrity of the justice system and the courts being able to hold the executive to account. Members will be aware that in the COVID response Act more generally, we have a New Zealand Bill of Rights Act provision there that limits the power of the executive to make COVID orders, and it is the courts that are the body to whom citizens who are dissatisfied with executive decisions as to whether they go too far in respect of New Zealand Bill of Rights Act issues—it is the courts to whom they go to resolve those issues—

💬 Simeon Brown: What about juries?

—and there’s been quite a bit of jurisprudence already on some of those issues.

Now, the issue of access to the courts, of course, goes further than that, because we have to ensure that people can see that justice is done. People have to be able to have access to the courts, whether they’re vaccinated or not, as an accused, and there are different and quite complex issues as to who has the responsibility for, in the face of those imperatives, keeping other people in the court system safe.

What do we do with jury trials? Members will be aware that jury trials have been suspended in Auckland for some time, and we’re way behind in our jury trials as a consequence. If you have an empanelled jury that is a mix of vaccinated and unvaccinated people sitting next to each other for long periods of time, what does that do to the ability to get vaccinated jurors to do their work? On the other hand, what do we do in respect of unvaccinated jurors? Do we do this at the time juries are empanelled? How do we control access—

💬 Chris Bishop: Well, what’s the answer?

Well, the answer to these issues is that we’re working these issues through with the judiciary in a very careful way, because we don’t want there to be an implication that it is the executive that is making these decisions.

There are some complications where the inherent jurisdiction of the court to control the conduct of processes in their own courts may have been inadvertently constrained by other legislation—not COVID-related legislation—and we’re considering whether the better remedy to enabling the court to deal with these issues is to remove those inhibitions on the inherent powers of the court to control processes in their own court.

The final point I would make is that there is a difference at law between access to court precincts and access to courtrooms, and what occurs in the courtrooms. So I’m interested in the Minister’s view as to whether he thinks that the bill cuts across that in any way, or whether it is the intention of the Government to allow that discussion to proceed with the judiciary via me, as Attorney-General, in a way that makes sure that whatever needs to be done in respect of vaccines for jurors, for the accused, for court staff, for the public accessing the courts, for journalists covering these proceedings, etc.—that that’s been worked through outside of this legislation.

Thank you, Mr Chair. Can I begin with the Attorney-General’s comments and thank him for that contribution. Yes, he is correct around the New Zealand Bill of Rights vet. They are often updated and dated relatively close to when the bill is introduced to the House. That is very common.

In terms of the issues that he’s raised around the courts, he is quite correct that it raises a variety of quite significant dilemmas both for the executive, for the Parliament, and for the courts themselves around access to justice, confidence in the independence of the judiciary, and the independence of court proceedings but also some of the dilemmas that the courts themselves will face from people who are reluctant to participate in court proceedings if they are having to do so alongside people who have not been vaccinated. This is particularly the case in jury trials, where we could face a situation where vaccinated jurors are unwilling to serve on a jury with unvaccinated jurors. That is something that I know the courts are particularly attuned to the risk of and is something that they have been turning their minds to. These issues haven’t been resolved, and I think it’s important that we don’t rush to resolve them. The best way to do that is to continue an open dialogue with the courts to make sure that whatever agreements are reached, whatever arrangements are put in place, we can preserve the independence of the courts.

One of the factors that has been raised with me which I think is a really important one is if the courts are to use a provision around requiring mandates when they themselves are having to consider whether those requirements are, in fact, justified, that could potentially undermine the confidence in the court’s impartiality when it comes to that, and of course these mandates are being challenged in the court. So there’s a dilemma for the courts there that I think we just need to step our way through very carefully, not rush decisions about that, and make sure that we get that right.

So the bill does not specifically reference courts. It is possible—it is possible—for requirements to be put in place around courts. The Government would certainly not do that without the agreement of the courts, and so that is something that we’ll have to work our way through carefully.

In terms of a couple of questions that were raised both this morning and earlier in terms of the definition of “vaccinated”, one of the reasons that that has been delegated to the director-general is that there is a potential that that will change in the sense that additional vaccines will come on to the market, and we need the ability to be able to add additional vaccines to that schedule. We need to be able to add different combinations of vaccine to that as the research continues to evolve there, and we need to be able to factor in booster doses and frequency of booster doses as the science around that becomes clearer. So allowing that definition to be updated as necessary through a delegated power to the director-general is the sensible way of doing that.

In terms of the purposes of sections 11AA and 11AB in clause 7 and how they’re different from the current section 11 and why, in particular, in exercising these provisions the Minister “may” consult with the Director-General of Health as opposed to “must” consult with the Director-General of Health, as is required under the existing section 11 provisions, it is because sections 11AA and 11AB as inserted by this bill have a slightly different purpose to the original section 11.

So section 11 was about a public health response, and it meant that any requirements there were justified based on public health grounds. Sections 11AA and 11AB actually expand that wider to include “the public interest”. There can be other factors other than just public health grounds that are taken into consideration in imposing those, and so it may or may not be appropriate to consult with the Director-General of Health. One of the examples that actually came up in the debate last night was if the Director-General of the Ministry for Primary Industries was to introduce a requirement based on international trade obligations, it would not necessarily be necessary or required to consult with the Director-General of Health about that, because it wouldn’t be a public health ground upon which such a requirement would be introduced. So hence there is a “may” requirement rather than a “must”, because it won’t be appropriate in all circumstances to consult with the director-general on those.

In terms of advance notice around people and around the requirements, we made some announcements on 26 November that indicated how the Government intends to apply vaccine requirements at different levels of the COVID protection framework, so people have had notice of this. Yesterday, we announced that workers in these businesses will need to have had at least one dose of the vaccine before they go to work under the COVID protection framework—so they’ve had advance notice of that—and they’ve been told that they’ll have until 17 January to have their second dose. How we give effect to those is through amending the existing COVID-19 public health response vaccinations order. As I indicated yesterday, it is through the amendments to the vaccination order that’s currently in place, made under section 11 of the Act, and this bill now allows for the requirements under section 11 to be broader than just exclusively public health grounds. It is through that existing vaccination order that we will, through amendments to that order, introduce the extra vaccination requirements under the COVID protection framework, which I think addresses the question that Chris Bishop was alluding to last night.

Well, thank you very much, Mr Chair. Now, it’s great to have the Attorney-General in the House. I think he was trying to be helpful, but I think he has actually broadly confused matters, and I’d encourage him to take a call and potentially address some of the matters that the Opposition wants addressed.

So the first issue is in relation to this issue to do with the courts and unvaccinated and vaccinated jurors. To paraphrase what he said, basically, he said, “It’s really complicated.”—and it is—and that is an argument not to pass the bill this morning or this afternoon, but to send it to a committee to ventilate these very complicated issues. So, indirectly, in trying to be helpful and ask the Minister to address the issue to do with jurors and how the courts will figure all that out, he’s basically made the argument of the Opposition, which is that the bill is complicated and the factual scenarios with which the traffic light framework will be applied are very complicated.

It’s not that we can’t work through them as a country—we’ll be able to do that—but, actually, bills like this need time to breathe, need time for people to get their head around them. It got dropped on the Opposition on Monday night, and I thank the Minister for at least giving us half a day to look at it, rather than Tuesday morning—

💬 Hon Member: You mean half a night.

—half a night—but, actually, the public need time to do that too. So I’m not sure Mr Parker was being very helpful.

The other point in relation to the courts is—and it’s just been occurring to me now, and, potentially, the shadow Attorney-General may want to have comment on this as well—how does this relate to the inherent jurisdiction of the High Court? I mean, if the Government says, as the Minister’s just indicated, that they’ll work through the issue of jurors, vaccinated and unvaccinated, what happens if a High Court judge says, “Well, I don’t really care what the Government says. I’m allowing unvaccinated jurors on my panel.”? What happens if a High Court judge says that? A High Court judge has inherent jurisdiction over their courtroom. We know that the judiciary are very protective of their inherent privileges, and various journalists and others have discovered to their cost that there’s lots of things you can and can’t do in a courtroom.

This really does raise an issue of comity between the Parliament and the judiciary, and, in fact, between the Government and the judiciary in the separation of powers. I mean, what is the legal position if the Government says that only vaccinated people can serve on juries, which the Minister has indicated is an open question and up for debate, and a High Court judge says, “Actually, you know what? I believe that tramples on the right to a fair trial, and I’m not doing that.”

Actually, if you’re unvaccinated you have a right—in fact, in some cases you have a duty—if you’re called, to serve on a jury, and if a High Court judge, “Justice ‘Insert name here’ ” down the road, says, “I don’t really care what the Government’s mandate says. I have inherent jurisdiction over my courtroom. I believe that it’s an affront to the right to a fair trial for unvaccinated members of the community to not serve on a jury.” They are members of the New Zealand community, like everybody else, and the fact that they have made a choice not to be vaccinated—I would say it is the wrong choice, but it is a choice that they have at law, and no one is supporting mandatory vaccination here across the entire community.

So choice is preserved for a large chunk of people and it may well be that they get called up to serve on a jury, and the question is a really tricky one. It’s a live issue. What is the position with regards to the inherent jurisdiction of the High Court? So the Attorney-General may wish to comment on that.

Just in relation to the New Zealand Bill of Rights Act situation, with respect, the Attorney-General is somewhat gilding the lily. Yes, it is true that New Zealand Bill of Rights Act vets happen right up until the bill gets introduced—of course, that is the case—but the point is the bill was drafted in a hurry. I just refer him to the legal advice that is public that’s directed to him from the Ministry of Justice, which is the section 7 vet report, at paragraph 2: “We have not yet received a final version of the Bill. This advice has been prepared in relation to the latest version of the Bill … This advice has been prepared in an extremely short timeframe due to late receipt of the Bill that was not in compliance with Cabinet Office Guidance.”, and we know it wasn’t in compliance with Cabinet Office guidance because when the framework went to Cabinet on the Monday before it was announced on Friday, 22 October, it had not had any New Zealand Bill of Rights Act analysis done, and that’s what that reference is to.

As the Attorney-General knows and as the Minister knows, all Cabinet submissions have to have a New Zealand Bill of Rights Act framework applied through them and some analysis done. The Ministry of Justice did not do that, and hence we find ourselves in this lamentable situation where we have the legal advice prepared at the last minute, and that legal advice is of course contestable by the Parliament. So I want the Minister to address the questions I’ve raised.

Once again, we get yet another contradictory position from the Opposition, who have spent the last couple of weeks demanding that the Government move quickly to give people more freedoms and are now saying that we should slow down that work so that the select committee can pontificate about the contents of the bill. In fact, the bill is required in order to move to that situation where people get more freedom and where people are able to go about their daily lives with a great deal more flexibility than they have under the current alert level framework. So I’m not really entirely sure what the Opposition’s position is—whether we’re moving too fast or too slow—because they seem to be arguing both of those things simultaneously.

In terms of the issues around the courts: as I indicated, no decisions have been made around the courts. The bill allows for decisions to be made around the court. None have been, and the very dilemmas that the member Chris Bishop raised are ones that we need to work through, including, for example, whether it would be a fair and representative jury pool if we were to exclude either unvaccinated or vaccinated, bearing in mind that if you require people to be vaccinated you’re excluding the unvaccinated, and if you require that unvaccinated people are in there, some vaccinated people will choose not to be.

So those are issues that are quite complex and that we will need to work through quite carefully, and I don’t think that this is necessarily the place where we are going to get measured argument and debate about that. But I think the judiciary need to be involved in that discussion, as they will be. So no decisions have been made. So let’s be very clear: no decisions have been made about that.

In terms of the other question that was raised before about whether, under section 34A, personal information is still private or will this be used for prosecution, the bill is very clear: contact tracing information can only be used for contact tracing for ensuring compliance with COVID-19 orders or those made under the Health Act. The Office of the Privacy Commissioner, I can also say, has been involved in the drafting of those clauses.

Thank you, Mr Chair, for the opportunity to take a call on this. I just find this debate fascinating, because you’ve got the Minister there saying, “Oh, I’m not sure about these things. It’s not quite something we’ve given much thought to, but we’ll get to it.” It just raises so many questions from this side of the House as to how this legislation is actually going to work. What we see in this piece of legislation is a Government which is giving itself a huge amount of more powers, but hasn’t actually done any thinking, despite the fact that next Friday we’re going to be moving into this red light, green light, orange light—whatever it’s going to be—system, a stop-go system which they’ve already announced, yet they haven’t actually decided all of these details.

There’s so many scenarios which we could be putting to the Minister, to ask questions. I’d like to just run through a few scenarios or questions around how this law and this section which empowers the Minister to make these orders is actually going to work. I mean, we’ve got this division between the vaccinated and the unvaccinated. How’s this going to apply to outdoor gatherings? In my electorate, in Howick, we’re coming up to Christmas. There’ll be outdoor events. We don’t put big fences around big outdoor gatherings for Christmas carols, or whatever it is, to check people’s vaccination statuses. Is that going to be required under this legislation to check people walking to the local markets, because that’s potentially considered an outdoor gathering?

I’ve put a Supplementary Order Paper on the table around the issue of funerals. I mean, when we get to red light in Auckland, are we going to end up in a situation where, if you check people’s vaccination status, Uncle Bob has just died, and his brother—you know, there’s always someone that’s not going to be vaccinated in the family—can’t come along because you can have 100 people if they’re vaccinated, but you can only have 10 if one person is not vaccinated. So we’ve got a scenario now where this piece of legislation is going to mean that Uncle Bob’s brother can’t go to his funeral, because that means 90 other people can’t come if he does turn up.

These are the decisions and the inflexibility which this piece of legislation empowers the Government to make decisions around how New Zealanders will be living their lives or not, under this piece of legislation. We’ve got situations where, as I said, outdoor events where community groups—are local councils now going to have to put fences around every single outdoor gathering? I’d like to ask the Minister: is that something that the Minister has considered? Is every outdoor gathering now going to need to require a fence around it to ensure that there’s a gate whereby people can have their vaccination statuses checked before they before they walk in for the Christmas carols at the park?

What I see in my community is event after event being cancelled—just being cancelled, cancelled, cancelled—because there’s no clarity around how these decisions are actually going to be made. There’s no clarity around what’s going to be required for indoor gatherings, outdoor gatherings—particularly outdoor gatherings. So we’re seeing huge amounts of things being cancelled, and this is from a Government which said that they were going to be making sure they’d saved summer. Well, this is the summer of cancelled activities, and the question is, well, who is it being saved for if everything’s going to be cancelled?

So I’ve got a number of Supplementary Order Papers on the table which I think try to address some of these issues and try to actually give the public a little bit more information as to how some of these decisions are being made. One of my tabled amendments requires that after the new section 11AA(1)(c), the Minister must, after an order under section 11AB has been made, table to the House of Representatives all the advice that was considered in making that decision, because, currently, we haven’t even seen the advice behind the so-called traffic light system. We’ll get that some time next year.

Well, now we’re going to pass legislation which is going to give the Minister more power without any requirement for that information to actually be tabled in Parliament. The public won’t know the rationale behind those decisions. The public are now going to have to somehow wait for an Official Information Act request which gets delayed and delayed and delayed and then redacted, and then finally released six months after the decision is made, and people will go, “Oh, OK. That’s interesting, but it’s a bit late, because we’ve had three new orders made since then.”

So I think this tabled amendment should be supported to require, at the time the decision is made, the information. The advice behind that decision should be made public because there is going to be so much division, so much uncertainty caused by these orders. The public should be informed and should have that information so they understand the rationale, and that will also put the pressure on the Government to actually be transparent, once and for all, over how they deal with COVID.

Thank you very much, Mr Chair. I thought this committee made a very good start last night, but there are many questions remaining for today, and one thing we’ve noticed is a pattern here, which is that it’s not the questions the Minister answers that are important; it’s the ones that he either doesn’t answer or hesitates to answer. One of them that I was getting to last night was what is the purpose of this bill in relation to the traffic light system, because the Government’s had nine months to get this ready and employers have 10 days until the traffic light system comes into being.

I put that question to the Prime Minister yesterday, and the Prime Minister said, “Oh, the member misunderstands. We don’t need this legislation for the traffic light system. It’s optional.”, or at least the safety assessment tool is optional for the traffic light system. Well, a lot of people think this legislation is necessary so that the traffic light system could come into being, and the question is that if this legislation is not necessary for the traffic light system, why is it in urgency, and if it is necessary for the traffic light system, why wasn’t it done nine months ago, when the Government started vaccinating people?

So I think the Minister needs to explain exactly why we are here under urgency. The Minister gets up and he says, “Oh, a select committee would just be pontificating.” I find that ironic for two reasons: number one, since when was parliamentary due process pontificating? The second thing I want to say—and Scott Simpson, of well-educated stock, will know this—is that that’s a derivative of a Latin word coming from the Minister who got rid of Latin from the curriculum. You know, next time, he’ll say that “Select committees are just bridging.”, because he won’t have that background or richness of language, or at least the next generation won’t.

We need to understand: is the Prime Minister correct when she says that, actually, we don’t need to have this in place for the traffic light system to work because the safety assessment tool is optional? It would be helpful for the Minister to tell us when the safety assessment tool will be set down in regulation, as this law allows, and then maybe he could get up and tell us how long’s that going to take and why has it taken so much longer, and why the safety assessment tool isn’t in the legislation so that people could use it now. It’s no good for the Minister to stand up and say, “Oh, they want us to go faster and they want us to go slower.” What we wanted was a Government that was organised months ago—that’s the difference.

Of course we want it to be ready now. The criticism is not that we’re rushing now; the criticism is that the Government wasn’t prepared nine months ago, when it stared vaccinating people. The criticism is that people will need two different apps on their phone: one to show they’re vaccinated and one to show that they have scanned in with the COVID-19 tracer app. It’s about a Government that has had months and months, has spent it doing a little dance, and it didn’t get organised to have things like this in place, and it’s now making a mockery of democracy, saying, “Going to a select committee to hear from the people would be pontificating.”—there’s that word again.

So I want the Minister to stand up and say how much of this legislation is necessary for the traffic light system to work, how long employers will have to put it in place, and why the Government didn’t get ready earlier so that we wouldn’t be rushing under urgency, desecrating democracy in this House today. Those are the basic questions that people want to know about, because I can tell you the phones are ringing off the hook. The email in-box is dinging with people up and down this country asking, “What is this Government doing in Parliament? Why has it taken them so long to get themselves organised, and why did they leave so little time for us to get organised?” Those are the sorts of questions the Minister should be getting up to answer.

Is this Government still committed to democracy, or should we take from the fact that they didn’t even do a proper regulatory impact analysis, they didn’t compare this bill with the New Zealand Bill of Rights Act and get it signed off there—does that mean that they don’t really care about civil liberties? This stuff matters because we need to show that free and democratic societies can deal with pandemics consistent with freedom and democracy as their values, rather than throwing those away because the Government wasn’t organised. That’s what we need to do. That’s what the Minister needs to get up and answer, because it’s always the questions he hasn’t answered that are more revealing than the ones he does. Thank you, Mr Chair.

I would ask the Minister if he’s able to confirm in response to a point that Chris Bishop made in his last contribution that this legislation does not purport to override the inherent jurisdiction of the courts, that even if it tried to it would be very hard to achieve that by legislation—and we certainly wouldn’t want to—and that, indeed, the Government, through the Attorney-General, is trying to enable to the courts to control these processes through their inherent jurisdiction to control their own court spaces, in part, because the rights of people who are being tried are very, very important, and if they believe that their trial is unfair at the behest of anyone, including a judge, we want them to have appeal rights to higher courts so that the courts can consider these issues through those normal appellant processes, rather than through the executive trying to determine all of those things through executive orders.

Thank you very much, Mr Chair. I’m grateful for the interaction that we’ve had this morning. In the way that a committee stage operates, of course, it’s the relevant Minister who answers questions, and others can participate. I do want to acknowledge that the Attorney-General has come down to the House to participate, albeit in the form of questions that he’s putting, of course, to the Minister in the chair. Between them, they’ve certainly attempted to allay some of the concerns that I initially raised last night, and there’s others—for example, my friend and colleague Christopher Bishop—who have been continuing to ventilate this morning, but the trouble is we don’t have any more clarity in terms of what the law says.

So it might be the case that Government Ministers give assurances that they don’t seek to do certain things that would tread on the toes constitutionally of other branches of Government, but my question to the Minister is why does the law not specifically say that, because there is nothing in the law to suggest that the courts are not subject to this legislation. It might be with reference to the inherent jurisdiction that the Attorney-General says, reasonably breezily, “Oh well, of course we wouldn’t want to, and no one would think that we would.”, but the question then remains: what about other quasi-judicial settings—for example, various tribunals and perhaps lower courts that wouldn’t claim the lofty heights of inherent jurisdiction in the way that perhaps the High Court would? Are those settings subject to this law as well? So, for example, the Tenancy Tribunal, the Employment Relations Authority—all kinds of professional bodies—conduct disciplinary - type settings. Access to justice must be considered in a broad way, and I’m not convinced at all that the Government has considered it even in a narrow way until such time as the Opposition has raised these issues.

So that’s the first point, and it comes with a question: what other parts of the court system, which, yes, includes all those other bodies and decision-making fora, are subject to this bill—number one. Number two, any that are not should be excluded explicitly, and will he contemplate doing that or would he agree to support a Supplementary Order Paper (SOP) that I or someone else on this side of the House were to put forward along those lines?

My next line of inquiry is when exactly these discussions are going to resolve—particularly, my question is will they be resolved by the time that this system comes into force, which I’ve heard is Friday week? I haven’t looked at the calendar, but in any case, it’s pretty jolly shortly in the context of discussions that the Minister quite rightly acknowledges are complex. They are complex discussions—of course they are. He’s absolutely right to do that. But it’s one thing to diagnose a problem as being complex and another thing entirely to solve it, or even commit to solving it, by a certain time frame, the time frame by which it’s needed, and, by the way, it’s not just a matter of litigants and witnesses and prospective jurors and so on rocking up to a court and finding out what the rules of the day are. They need to be preparing now.

The system is already, I’d say, probably reasonably clearly in some sort of crisis, and, to be fair, a longstanding one, even before COVID hit. Utter chaos now—huge delays, as the Minister again has quite rightly acknowledged, now that we’ve put him to it. There have been jury trials deferred, and that’s understandable as far as that goes—of course it is—and we wouldn’t suggest otherwise in terms of the public health imperative, for a limited time. But what’s the future beyond that? We simply don’t know, and we also don’t even know when we’re going to know.

So we’ve got these unknown knowns, or, rather, these known unknowns, and the unknown unknowns as well—I’m not going to go down that path. But for even the crucial question of timing of when we can expect these complex discussions to be resolved, it is just extraordinary. We absolutely need that certainty right now, or, in fact, a long time before that, and the Minister can get out of jail free with this at least by saying by way of SOP that, just to be clear, to avoid any doubt, etc., the legislation doesn’t purport to affect courts, tribunals, etc. in the meantime, until such time as a new framework is put in place or perhaps orders are made under this. But in the meantime, we’ve got no certainty in that regard, and that’s simply not good enough.

Also disturbed, of course—and I think Mr Bishop did make this point, so I won’t dwell on it. But the idea that this committee of the whole House is not a place where we’ll get measured debate about these issues is, I think, actually quite offensive from a democratic point of view. My own feelings are not hurt personally. I think, actually, in fact, we’ve had a good debate on these issues, but it’s the irony of the thing—that we’ve had to raise these issues late in the night on the day that the bill is introduced, shortly before it’s about to be passed into the law of the land, even to have the discussion. It feels very reactive that they’ve even committed to engage to the extent that they have.

Goodness knows, a select committee would be an even more measured place, and to Mr Seymour’s point about pontificating—he’s right, of course. The Latin root is actually connected, dare I say it, with that of the office of the Pope, and he might be said to be infallible, but this place isn’t. The Government isn’t. It shouldn’t pretend that it is. It should actually get on with doing some proper scrutiny and allow us the time to do that.

Just in relation to the last comment the member Chris Penk made, I think he misinterpreted what I had intended by my comment. It’s not that I don’t think members of Parliament aren’t perfectly capable of having views on this; it’s that I don’t think Parliament should be determining the operating procedures of the court without actually having a conversation with the court about that. So that is the reason why I don’t think this is the appropriate place to resolve it, because I think the judiciary should be actually leading that conversation, not us—which I do believe is actually the point the member is making himself in his contribution. So I just didn’t want him to misinterpret what I’d been intending to convey in my earlier comment.

In terms of when those issues will be resolved, to some extent—well, to the largest extent—that is down to the courts. I mean, the Government did not require the courts to end or to stop doing jury trials; it was the courts themselves that made that decision, and, in fact, they made that decision before the first lockdown was even enacted by the Government. These were decisions that the courts made independently of the Government, and that is quite appropriate.

In terms of how much of this legislation is needed for the transition to the COVID protection framework, we did go through that quite extensively last night, but just to recap on that, there are two aspects of the bill. The tool kit is not required for the traffic light framework to be put in place, but the additional provisions the changes that particularly allow for additional factors other than exclusively public health criteria to be considered in the making of the orders is required to pass through the House before the protection framework can be put in place.

All of the questions David Seymour raised other than that were addressed last night. I accept that he may not have liked the answers, but they were, in fact, answered last night. As I also indicated last night in terms of the release of advice, the Government will release advice. We will proactively release the advice and, of course, people can—there are already enactments of Parliament around the access to official information that will continue to apply. We will of course also be releasing detailed guidance for each individual sector on what the protection framework will mean for them. So there will be absolute clarity in that case.

In terms of the issues around funerals, we have to acknowledge that funerals are quite high-risk settings and can be quite high-risk settings, so hence, yes, these requirements should still apply to funerals and tangihanga. It’s not the Government’s intention to exempt them from the framework.

Most of the other questions that have been raised this morning relate to provisions or rules, if you like, that will be made under the empowering provisions here. So they’re questions of detail and, therefore, they are not specific to the bill. They are specific to how the bill may be used in terms of the orders that may be put in place under the bill, but the bill itself is a very broad empowering provision, and it does not turn its mind to most of the other questions of detail that members have been asking.

Thank you, Mr Chair. It’s a pleasure to come back to the committee and continue the discussion and debate on this bill. I just want to refer back to some of the comments that have been mentioned by members in the committee this morning, talking about the confusing nature of some of the comments that the Minister has said. For me personally, the Minister says that he has provided greater clarity in the case of this bill when I asked him the question in relation to the amendment he’s made to the COVID-19 Public Health Response Amendment Bill (No 2), which was finished last week—but I see that in the new bill that we are actually debating, the COVID-19 Response (Vaccinations) Legislation Bill, there is an addition.

The question that I raised last week in my Supplementary Order Paper (SOP) was in relation to the security question, where other countries—for example, in Indonesia—exposed the data of more than 1.3 million users because there was no proactive update of the app, or the fact that there were authorities and Government entities who promised not to utilise data collected for COVID tracing for prosecution purposes. Yet I see that in the new bill, it is inserting a new section 34A(1)(b). The concerns may be raised that law enforcement will now have access to COVID-19 tracer data for ulterior purposes not related to the COVID public health response. I just want to ask the Minister: how can the Minister reassure the public this will not be the case?

I kept mentioning that there are a lot of people who do not use the tracer app because they are worried about what the Government will do with that data. Will the Minister confirm he will not further expand section 34A and will he actually provide a guarantee to New Zealanders?

Even when, in relation to the COVID data—and we now actually have the COVID tracer app, where people use it to scan the quick response (QR) codes. We also now have the New Zealand My Vaccine Pass, and now we also have the app that verifies that people have the vaccine pass and that they are, in fact, vaccinated and they can actually come into their businesses or organisations or events that they are holding.

The problem is that there are so many people in New Zealand, including New Zealand permanent residents, who do not have documentation that can actually prove their identity, and so they’re having difficulty getting their vaccine pass. To prove that they’ve been vaccinated, they have to make a phone call, and you sort of wonder, with one phone call on the other end of the phone, how do the officials know that these are the people? Why did the Government not actually think of including the visa that was issued by Immigration New Zealand as a form of identity, or utilising foreign passports as a means of providing proof of identity for these people? There are, effectively, thousands—tens of thousands—of people who will not be able to participate in everyday life activity because they will not be able to prove their vaccination status or their identity.

Going back to that whole data issue, what was the reason for the Minister to suddenly, after only one sitting week of the House, urgently—under urgency—rush through this additional subsection, when his comments on the 17 and 18 November sittings made it absolutely clear that his officials didn’t actually think it necessary to expand the clauses, which I had actually prepared an SOP on as well. Should members of the public be concerned about the Minister’s remark made during the House’s sitting on the COVID19 Public Health Response Amendment Bill (No 2) that section 34A provides—and I quote—“an additional layer of certainty”, when the Minister has further amended this section to expand the reasons for the expansion of the COVID tracer app as well.

I just want to say to the Minister, will the Minister give absolute surety to the House that he won’t further expand the powers of accessing COVID-19 data again, as he is doing in new section 34A(1)(b), to extend the reach of the Government to track and trace the movement of New Zealanders, who are absolutely worried as to what the data is providing to the Government? For the purposes of COVID tracing, they’re happy to give their data, but they are really, really worried about what the Government’s reach could do.

Thanks, Mr Chair. The question that I have is on something that the Minister raised earlier today. In the legislative statement that the Minister presented to the House, it said, “In addition, the Bill amends the COVID-19 Public Health Response Act 2020 to:”—one of the bullet points says—“require vaccination where the Director-General for the Ministry for Primary Industries has determined this necessary in order to facilitate access for specific products or classes of products to specific overseas markets.” The question I would like to ask the Minister is: there’s nothing specific in this bill that works the Ministry for Primary Industries or, in fact, the director-general’s decisions in here—it’s a health bill rather than a market access bill. I know that the Minister talked before about orders that sit underneath this bill, but I would require a bit more explanation from the Minister as to how he sees this happening, because it’s very difficult to actually explain that when it’s not in the bill. I would be really appreciative if the Minister could please give us an explanation on that one. Thank you.

Thank you, Mr Chair. I just want to seek some more details from the Minister regarding some comments he made around my colleague Simeon Brown’s tabled amendment that the House of Representatives release all advice that was considered in making an order, particularly in relation to a health order.

We in the South Island feel incredibly abandoned by this Government. If I just go back in time a little bit, when Delta first hit, we complied and got on board. We had absolutely no cases in our community whatsoever. We sat through the level 4; we complied. We sat through the level 3; we complied. Inexplicably, we have been languishing in a level 2 environment for two months now. We, the National Party’s South Island MPs, wrote to the Prime Minister and asked her to release the technical advice that she’d been using to base this decision on, bearing in mind we had no community cases. We had not had any community cases for over a year.

The Prime Minister never responded to us. She transferred the inquiry on to the Minister himself, who did respond—thank you, Minister—about a month or so, I think, after we’d written. We received this most extraordinary letter from him that was just so incredibly vague, saying something along the lines of “Cabinet had been looking for evidence of the effects of the measures on the economy and society more broadly.”

Well, let me tell you something for free, Minister: the effects have been extraordinary. I say this with deep appreciation and sympathy towards all the businesses in Auckland that have just literally gone through hell, but businesses in the South Island are going through hell as well. If you’re a hospitality business, you are being requested to double your staff but halve your patronage. I tell you now, hospitality businesses throughout Christchurch have liquidated in their droves. There are about 500 businesses—members of the Christchurch Central City Business Association—that want to know why we are still in level 2.

I refer to the bill; yes, I understand we are changing the framework. We’re heading into the “red light, orange light, green light, go” framework, which absolutely nobody understands. But, Minister, you did comment before to my colleague Simeon Brown that you would release this health information in future, and we do very much appreciate that, but we’d also like to know: with what regularity? Is it going to be proactive, or are we going to have to make an Official Information Act request? Is it going to be on Friday at 4 o’clock in the afternoon, or will you be free and frank with the advice on which you are making this decision to keep us in lockdown, so that we know, so that we can get on board with it—so we can get on board with our businesses and get on board with our lives?

Thank you very much, Mr Chair. I do appreciate being given the opportunity to take a call. There are a couple of questions and matters that I want to ask Ministers in relation to this legislation.

One relates to the beginnings of a conversation that was started by my colleague the Hon Michael Woodhouse last night. It’s around the word “engaged” in clause 4(1) of the bill, where it says an “ ‘affected worker’ means a worker who is employed or engaged by a PCBU to carry out specified work”. The question really relates to the definition of “engaged”. That is a word that has quite potentially wide ramifications in terms of definition, and I’m keen to know from the Minister his interpretation of what engaged might mean. Does it, for instance, include contractors? Does it include people who may be delivering product or services to a premises? Although the Minister attempted last night to give some kind of indication, he really ended up—[Knocks over a glass of water]—just making more confusion than he did anything else. And, as is often the case when you have a glass of water, there appears to be about 10 gallons of water in half a glass of water, but that’s just the way it goes—[Barbara Kuriger passes paper towels to Hon Scott Simpson] Thank you very much to my colleague Barbara Kuriger. So there we go.

The second matter that I wanted to raise relates to clause 6, which sets out some changes to the principal Act under section 11 of the principal Act. These are the provisions that require people to “stay in a specified area, place, or premises or refrain from going to any specified area,” and then also to “refrain from travelling”. Now, these are matters that are of deep, significant importance to constituents and people in my part of the country, in the Coromandel. Of course, the Auckland border has now been in place for several months, and it’s very clear that there has been an impact not only on Aucklanders wanting to travel to the beautiful Coromandel but also upon people living and doing business in the Coromandel, who have not had the benefit of visitors coming and spending time and money in the region.

So these are two clauses that make changes to the principal Act, and what I’m keen to know from the Minister is why the changes are necessary and what, particularly, are they. They seem to be broadening the already very wide parameters that the Government has and the ability that the Government has to enforce people to stay in a specified area, place, or premises, and that is obviously in relation to managed isolation and quarantine facilities, but it’s the refrain from travelling that is of concern. So what I’m keen to know from Ministers is: what is the reason for the change, and how has the principal Act been amended? What are the differences and why? Those are the principal questions that I have—while I sort out the water issue, Mr Chair.

Thank you, Mr Chair. I want to pick up on the comments of my fine colleague the Hon Scott Simpson from just before, because my electorate of Port Waikato obviously spans the southern border, so I’ve had to live daily with businesses who have literally had to deal with trying to get their key staff across the border—their principal business might have been in Pōkeno or Pukekohe, but one of their key staff members is based in Te Kauwhata, as an example. I’ve got many live examples I could refer to, but I think the point that the Hon Scott Simpson made about the travel is very important.

So I’ll give you an example of what I’m very concerned about. A roofing company who is engaged doing work for Kāinga Ora or a marae would in many cases be able to get exemptions to get workers across the border, but a building company—and I’m not trying to highlight any particular organisation, but we have many, many building firms, particularly in places like Pōkeno, which is growing like billy-o, where you have people who cannot get builders. I’ll give you another example: a roofing company trying to complete roofs over houses during the winter could not get their key roofing person from Te Kauwhata to Pōkeno, because they were deemed not to be doing essential work.

So we’ve got this differentiation between building companies working for the Government—Kāinga Ora—who would get permission in many cases, but building companies trying to build houses for ordinary New Zealanders or needy New Zealanders or New Zealanders trying to buy their first house can’t get their staff across the border. So I am concerned about this new amendment in clause 6 to section 11, about travel.

I’ll give you another example. I had the example of a quality-control person, who is actually a lady, who worked for a meat company that is an export business, so you’d think that was quite important economically to New Zealand that we’ve got support for our exporters, because, after all, who’s paying for Grant Robertson’s $60 billion of additional debt that he’s piled on over the last 18 months?

💬 Simon Court: Our children, our grandchildren.

Well, mainly our farmers and our exporters, isn’t it? But, of course, we’re going to leave that legacy, as my colleague from ACT is quite rightly saying, to the next generation. But, no doubt, Mr Robertson and the Labour Party will be long gone by then. But the point about that person coming from Onewhero, trying to get to that meat-processing business, that exporting company, is that, actually, most of their 50 staff live inside the Auckland zone, but this one person did not, and because that meat has to be subject to quality control because it’s a requirement of the market they export to, the 49 people were, effectively, held to random because the Government would not give that person the right to travel across the border. Of course, this is what section 11 is about.

So, what we’re doing is choking New Zealand businesses, even those who are trying to build new houses for first-home buyers and exporters, from actually getting on with their lives, and, here we are, we’ve got another piece of legislation. “Hey presto, we don’t know what’s in it, but let’s give ourselves this generic power of restricting and people travelling across the border.”—and I’m looking specifically at new section 11(1)(b)(i).

Here’s a Government that just loves regulations—it just loves regulations—“Let’s put in as many regulations as possible.” Well, why doesn’t the Government just have a different view, which is “We need to let businesses get on and do their livelihoods, allow those people to continue to be employed.”, because the result is that many of those companies are going broke because they cannot get their workers across the border. I can tell you that as the MP for Port Waikato, I was dealing with hundreds of cases—hundreds of cases—like this. It was all about how we could construct and make sure that if they were doing a job for the Government, they could get across the border.

I think new section 11(1)(b)(i) needs better explanation from the Minister. I’m glad to see Minister Wood in the chair, because if it’s going to be more constraint and that Minister trying to tell businesses what to do, that is a really bad outcome.

Thank you, Madam Chair. Look, I thought I would just take a call and address a few of the points that have been made in debate over the last half hour or so. A number of these are points that were made and addressed in the debate last night. I’m conscious that a number of members may not have been here for that, but for the benefit of the committee I’m very happy to come back to those particular points.

The first one that I do want to speak to is the point that was raised by Barbara Kuriger in terms of the provisions around market access. This was a point that Minister Hipkins addressed last night. He explained that earlier documentation had made reference to the Director-General of the Ministry for Primary Industries, but it was determined not to carry that forward into the legislation itself. The relevant point here that I will just draw attention to—and I hope it is actually of some comfort to Barbara Kurger and also other members who are particularly connected—

💬 Hon Members: Kuriger.

—my apologies—to the primary sector—is that in new section 11AA in clause 7, we actually have clarification here that the definition of “public interest” can include issues around maintaining access to overseas markets. This is actually about providing some direct support, some direct ability to take that into consideration. If, for example, an export partner put requirements on products coming into their markets, that is a factor that can be considered in the public interest, and that’s something that’s been developed specifically in response to engagement and representations from the primary sector.

The second point that I’ll address again is one that was explicitly addressed last night by myself, and that was a point raised by the Hon Scott Simpson—it was the same point that was raised by the Hon Michael Woodhouse last night—and that’s around the definition of a worker who is engaged. We discussed this last night and discussed the fact that these definitions come from the Health and Safety at Work Act (HSWA) framework, because we are wanting to have consistency across the two frameworks, and I discussed in some detail last night the way in which HSWA is still relevant under this legislation in terms of the primary duty of care that employers have. The reason that we have the specific definition around engaging a worker is because the definition of “worker” under the HSWA does include a slightly broader category than just employees.

The example I gave last night, which I’ll repeat again for the benefit of the committee now, is that in a COVID-19 vaccination certificate environment—for example, in hospitality—we have the requirement in place, which I think is accepted by the Opposition, that people who are working in those environments should be vaccinated to, effectively, match the requirements on customers. Well, we would want that requirement, therefore, to apply to the person who was serving you your drink or your food, regardless of whether they are an employee or if perhaps they were in a contractor arrangement. So that’s why the definition of an engaged worker is in there, because it covers off those scenarios. As I say, we talked about that last night, but I’m happy to reconfirm that for the committee again this morning.

Mr Seymour raised a question about why it is that the details around the vaccination assessment tool will be set in secondary legislation rather than in the primary legislation. That is for the same reason that often these things are set in secondary legislation, which is that they are things which can be contingent and based on public health advice, which can potentially change in terms of the risk assessment and new information coming in. So the primary legislation empowers the Minister to set the vaccination assessment tool, but I do think it is more appropriate that it sits within secondary legislation. For example, if a different variant emerged and that changed the risk profile of the virus and possibly changed who we might consider a vulnerable person to be—which is one of the factors under the proposed risk assessment tool—you wouldn’t necessarily want to have to go through a full legislative process to deal with that. It would be more appropriate to deal with it in secondary legislation, and I think that’s consistent with the way that we often deal with these things.

Finally, I’ll just come to Mr Bayly’s point. Most of his comments appeared to relate to his concerns, no doubt genuinely as a local member of Parliament, around the Auckland boundary and its operation. I do have to say that’s not particularly relevant to this piece of legislation. Those decisions are not being enacted through this piece of legislation. But if I—[Interruption]—he attempted to draw a link to section 11. I’ll just, for the benefit of the committee, make it clear that section 11 doesn’t in any way broaden the powers of the Government in this area in any particular way, so I don’t think there’s anything there that the member should be especially concerned about.

Thank you, Madam Chair. That was a feeble attempt, I think, by Minister Woods to try to cover over and not answer the questions whilst trying to say he’s actually answering the questions. The reality is I don’t know whether he’s actually read the piece of legislation he’s partially responsible for, where section 11 is amended in clause 6, and it does include new restrictions and new powers given to Ministers around travel and requirements to make people stay in specified places or refrain from staying in specified places.

I’d like to ask a couple of further questions around clause 6 in relation to this. I guess the first question I’d like to ask is: why are we needing to put in place travel restrictions around particular places where we’re going to allow people to, for example, refrain from leaving an area unless the person has a COVID-19 vaccination certificate?

We all remember the Auckland border debacle, where the first proposal put forward by the Government was that they were going to stop Aucklanders leaving this summer unless they could produce a vaccination certificate, and then, of course, we all saw on social media the pictures of that great checkpoint in Beijing, where we had hundreds of thousands of cars lined up in about 50 different queues, and, of course, there’s always the motorway on the side, which I guess that’s what the gangs use to get past all the traffic. But everyone else has to queue up to show their papers to prove that they’re vaccinated.

💬 Hon Members: “Papers, please—papers, please.”

“Papers, please.”—that’s right. Then they backed down and they said, “Oh well, we’ll get proof of vaccination or a negative test and we’ll just do spot checks. We’re not going to stop everybody.” It’s still very uncertain around this, but now we’re putting in place a power that gives Ministers the opportunity to, effectively go back to their plan A, which is that only vaccinated people will be able to travel through checkpoints. That’s what this says, and that means, therefore, they want to have big checkpoints which will be stopping every single car to check: “Have you got your papers?”

So I have an amendment that, effectively, amends this, I think, to allow for a bit of common sense. Firstly, I think we’d question why this is here. I think one question the Government should be answering is whether the Government anticipates putting in place level 3 or level 4 lockdowns once we move to the traffic light system, because my understanding was that regional boundaries weren’t required once we got to that point. So is the Government still going to be putting in place level 3 or level 4 restrictions? I think New Zealanders would like to know. Do we anticipate more level 4 lockdowns in New Zealand, even though we’re going to have one of the most highly vaccinated countries in the world?

The secondary question then is: why are we having this power put in place? The third question then is: why does it not specify it should be a case of being vaccinated or having proof of a negative test, which is the requirement that the Government has put around the Auckland boundary—and, therefore, is the Government potentially going to renege on what they’ve said for the Auckland boundary, which is actually, “Now that we’re passing this legislation, we’ll have a power to basically say, once again, we’re only going to have vaccinated people leaving for Christmas.”, because that’s what this power allows the Government to be able to do. It is to be able to restrict movement in that way and not actually allow those who aren’t vaccinated—despite the fact that we may not like their choice, if they can prove they haven’t got COVID, we’ll let them travel.

It comes back to the basic point, which is actually that if you haven’t got COVID, you ain’t going to be spreading COVID, so why are we not allowing people to use rapid antigen tests? Why are we not allowing people to go down the road and get a test, like we’re going to allow people this Christmas to be able to travel with a negative test? There’s choice in that and there’s ability for the Government to stop the spread by stopping people who’ve actually got COVID and making sure they stay home whilst saying “We’re going to put sensible checks in place to ensure that we’re not allowing the spread to happen willy-nilly.”

So this clause, though, basically says we’re going to go back to plan A. we’re going to have Beijing-style checkpoints around districts which are, potentially, going to be in level 3 or level 4 lockdowns, because, from my understanding, this legislation doesn’t actually restrict New Zealand from going back to level 3 or level 4 lockdowns. Then our police force are going to be, basically, making sure everyone’s got their papers before they can travel in and out of these checkpoints and these geographical boundaries. Who knows when they’re going to be in place or where they’re going to be in place, and guess what? Under this legislation, they don’t even have to consult the Director-General of Health. Even though the actual Act that we’re amending is called the COVID-19 Public Health Response Act, we no longer have to actually consult the Director-General of Health. It’s just a “may have to” consult the Director-General of Health.

So there are a number of questions there I’d like to ask the Minister to actually stand up and answer, rather than fob us off, because we don’t have a select committee stage. We need actual answers at this stage in the committee of the whole House.

Thank you, Madam Chair. I just want to continue the conversation that the Minister was holding in regard to the work assessments, because I think this is fundamental to what we’re doing here. I do acknowledge that last night he did attempt to answer some of the questions that I had about the definition of worker, the degree of engagement, and the relationship between workers and subcontractors, in particular, although I point out that thanks to a piece of legislation passed by Kieran McAnulty—a member’s bill, actually; the triangular relationships bill—the convoluted relationship between a contractor, a subcontractor, and a subcontractor’s employee means that if, for example, a cleaning company has to put off a staff member because a business has decided that only vaccinated cleaners can come into their office, then the potential for the cleaner, who isn’t even employed by the business, to take a personal grievance against that business is very, very real.

Now, I’m deconstructing the words the Minister has used both here in the House, in the bill, and on media this morning about the degree to which the work assessment tool is a prescribed tool that needs to be followed, or what would happen if a business either doesn’t use that tool or makes a different decision. What we heard last night, and the words he used were that a business may conduct an assessment—that’s what the bill says. It’s not “must”, but “may”. What I would like to know is that if that’s the case, why are we putting it in secondary legislation?

The WorkSafe website is replete with guidance for business and for persons conducting a business or undertaking to use tools to assess risk. Farm safe is the best example of that, where the farming community go online and develop, using that tool, their health and safety guidelines for people coming on the farm and for people working on the farm. There’s dust guidelines, there’s how to write a guideline guideline—none of it is actually in secondary legislation. So my question is: why are these four criteria needing to be passed under secondary legislation if, indeed, it’s a “may”, not a “must”?

Now, in media this morning, in response to a challenge from a person on the radio that the guidelines were open to too much interpretation, the Minister said that they were very simple for businesses to follow. These are the words he used: “Only four things the business needs to look at. They’re quite objective measures, if three of four have to be met”—those are the words he used—“so that a business can reasonably require that workers can be vaccinated.” So my question is this: what would happen under health and safety legislation if three of those four criteria were met, but a business decided, on balance, not to have a vaccine mandate for reasons other than those four—supply of workers, for example—and that to enforce a compulsory vaccination would destroy the business, and if somebody, a stakeholder, coming on to the business then contracted COVID, would they be liable under either this legislation or the Health and Safety at Work Act? The more likely scenario, actually, is a more cautious approach by business.

So I can think of many businesses that have indoor spaces greater than 100 metres where people are working more than a metre apart and are not in close proximity for 15 minutes at a time, where the business could quite reasonably assess that they should have a vaccine mandate for the staff—it’s their business. My question is: if that happens, and a staff member refuses to be vaccinated and then a dismissal process is followed, would a criterion for a personal grievance be the failure of the business to follow this assessment tool?

That’s a very real prospect, given—and I acknowledge that I think it’s in Part 2, Madam Chair—the personal grievance provisions set out in Schedule 4, which is enacted by Part 2, which, basically, says—

CHAIRPERSON (Hon Jenny Salesa): Order! Can the member come back to Part 1, please.

It’s very relevant to Part 1 because the criteria for these assessments are prescribed in new section 33AB in clause 13 in Part 1. This is a really important thing to clarify, because what business wants to know is what are the rules of engagement and what are the risks that following those rules, either more cautiously or with a higher-risk profile—or lower—that they’re not going to actually get their butts sued off because of poorly drafted legislation. Is it “may”, or is it “must”; do they have to be met, or can they be a guideline; and if they’re a guideline, why on earth are they going to be in secondary legislation?

I do just, one final time, want to come back to a couple of the points. As I said before, I do think we have traversed them, but I might be able to find a bit more clarity to satisfy some of the questions that have been raised again by members opposite.

The first one I do want to come to is to return back to this issue around the vaccination assessment tool. The member Michael Woodhouse asked the question—it’s a different question to the one that was asked before and sort of the opposite. The question that was asked by one of his colleagues was, effectively, why wouldn’t we just put it in primary legislation? He’s, effectively, asking, why have it even in secondary legislation? Why not just leave it at the level of guidelines? The response to that is that we have had very, very clear feedback from the business sector, and actually from unions as well. There’s been a lot of agreement between the two of them about wanting to have as much clarity and as much simplicity in the way that employers can make these decisions and come to reasonable assessments that will be legally robust. So part of the reason about embedding it within secondary legislation is that employers will be able to have a high level of confidence that it has clear legislative backing, rather than simply guidelines coming from the regulator, and that there are some clear and as close to possible objective measures that they can make very simple assessments against.

I just draw the member’s attention to some of the comments that have been made, for example, since that announcement yesterday from Business New Zealand from some highly respected employment lawyers, who have commented that this vaccination assessment tool will create much more certainty and clarity from employers in terms of how they apply that tool. It’ll be much simpler than using broader health and safety risk assessments, but, to be clear—and I want to underline this—if businesses still choose to use health and safety assessment processes, they will be able to do that. We’ve seen, for example, Countdown make announcements in that area today. In respect of his question about if an employer goes through that process and then, for various reasons, determines that maybe they don’t want to then proceed with the decisions that they’ve made, that is a matter that we intend to address through the order that will be created to provide clear and legally robust guidance around that particular question.

The other point that I want to come to, and, again, it’s coming back to the question about boundaries. Again, I think the specific concerns around the current Auckland boundary do fall a bit outside of this debate. But, actually, to be really clear, the broad effect of section 11 in this bill actually is not a broadening of powers around boundaries, but, effectively, a clarification of how section 11 orders can work, and, actually, in some respects, it will somewhat ease up on the current situation that we have—by, for example, making the link between boundaries and the operation of the COVID protection framework much clearer.

The member’s questions about alert levels 3 and 4 decisions are not actually a part of this piece of legislation, and the Government has commented on that separately. So, again, I think that probably clarifies some of the points that have already been discussed in debate, but I hope that that is of some benefit to the committee.

Thank you, Madam Chair. Look, before I get on to it, I’d just ask a few questions. I think what we just heard from Minister Wood sums up everything that’s wrong with this legislation and the process behind it. The Minister was happy to stand up and say, “We’ve got business groups and employment law experts who say that this new tool will make it easier to assess the risk of COVID and set mandates and policies within businesses.” That’s true. Then he said, “You know, we’ve just had, for example, Countdown”—I think it was the example; he could have used The Warehouse Group as an example—“We’ve just had businesses that have set their policies.”, and the one glaring problem with all this is that the tool doesn’t exist yet. So he’s giving examples of why the tool’s actually not needed, apparently.

💬 Hon Member: Yeah, they all love the tool they haven’t seen.

Yes—well, exactly. Of course, given that the tool doesn’t exist, people haven’t actually seen it, so all that those experts in employment law and those business groups have said is: “It would be great if a tool did exist.”

I think about a comment someone once made about New Zealand’s healthcare system. They said that we’ve got First World professionals in a Third World system, and that reminds me of Michael Wood. He’s a First World Minister in a Third World Government. He’s getting up there, he’s making the best case he can, and he’s selling it, but, unfortunately, the tool he’s selling is a non-existent tool. He’d be better to get a rabbit in a hat and say “Abracadabra!” than actually try and argue for the policy.

Madam Chair, I’m sorry. I know this is a serious matter, but I just had to point that out.

I actually wanted to ask the Minister about clause 7 of this bill in Part 1—specifically, the new section 11AA. It says that “The Minister may make a COVID-19 order under section 11AB”—which we can get to—“in accordance with the following provisions:”. It goes on to say, “the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990;”. Now, that’s really important. It says “the Minister must be satisfied”, and then I go back to the New Zealand Bill of Rights Act and it says that there are justified limitations on the rights and freedoms in the New Zealand Bill of Rights Act: “Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Now, the thing is, up until now, what is “demonstrably justified in a free and democratic society”? Well, there’s been some ambiguity. Is that up to the Government to decide for itself? I mean, it says that if the Minister can satisfy himself, that’s good enough, or is it up to the courts to decide? Now, I think it’s really important, because before the Privileges Committee at the moment, there’s actually a bill about what exactly should happen if the courts make a declaration that Parliament has passed a law that is inconsistent.

I guess the question is: what will happen if a Minister makes an order under this law and the Minister says, “Well, we’re satisfied. I’m satisfied.”, and, you know, it goes on to say they have to have consulted the Prime Minister, the Minister for COVID-19 Response, the Minister of Justice, and the Minister of Health, and consulted any other Minister, and they may have consulted the director-general. They’ve done all of that and that they’re all happy, so how do the courts interpret that? Should the courts come along and say, “Well, Parliament’s passed a statute saying that if the Minister is satisfied that the order is consistent with the New Zealand Bill of Rights Act and, what’s more, they’ve followed the laws of consulting everybody that they have to consult and they may consult, being the Director-General of Health”, what then happens? Do the courts interpret that this statute overrides the requirements in the New Zealand Bill of Rights Act, or do they then say, “Actually, we’re not so sure about that. We’re going to strike it down and declare that this order which has been made under this law is inconsistent.”?

So is it that the courts decide if an order is inconsistent with the New Zealand Bill of Rights Act and what’s acceptable in a free and democratic society? Or has this law just given the Minister a new standard that as long as the Minister is satisfied and consults a few other Ministers, then that is consistent with a free and democratic society?

Now, I might just take this opportunity—I know we’ve heard the point made, but it bears repeating—to say that this is exactly why, if you find yourself in a global pandemic and you start vaccinating people in February, you don’t wait until November to legislate how the vaccine passports work, because you may find yourself rushing through issues that are extremely constitutionally important and that the Privileges Committee is currently considering and maybe not know the answer to. I hope the Minister does, and he’ll get up and tell us now.

I move, That the question be now put.

Before I take the next call, can I warn members that the issues and the questions being raised are beginning to be repetitive—since last night.

Thank you, Madam Chair. I find it a little bit disappointing that what we’re actually trying to do here is considered repetitive. I have sat here since last night and this morning, and every single question points to a problem. I do not feel that it was actually repetitive, and I actually find it quite offensive. When the Ministers attempt to answer a question—and some people have tried say that it is telling when the Ministers don’t address the question—it is the bigger answer. I guess we get a bigger picture when they don’t address the question.

I’d like to raise an issue in relation to new section 23A, “Power to direct person to produce evidence of compliance with specified measure”, in clause 12. I’m guessing that when the police or anyone else in authority want to make sure that people are vaccinated in order for them to enter a premises or whatever, the issue that we have—and I completely empathised with my colleague Nicola Grigg when she mentioned the issues that the South Islanders were facing. I have complete sympathy and empathy with them, because they have been in lockdown, almost—in level 2—because the businesses could not operate in the same way. Hospitality, particularly—level 2 doesn’t even cut it when they’re having to provide extra staff, but not enough people come in.

Similarly, Auckland businesses have the issue that, whether it is a shop that was able to operate recently, they could open their stores, but people would walk in with passes saying that they’re exempt from wearing a mask. How does a business know that that exemption certificate or pass is, in fact, legal, or the genuine article, because there are like five people in a row, all come in with a pass wearing no mask, and the operator is actually quite concerned that these people might be spreading COVID-19 and they may not have been vaccinated? They may even be positive for COVID-19, but they actually hold the exemption certificate.

The issue that I keep raising in terms of the privacy issue and the security issue of data is that even the vaccine pass, the COVID pass, that we now have and the verifier app—I haven’t actually tested the verifier app too much. But the thing is that the vaccine pass could also be screenshot. It could be used by somebody else pretending to be myself—not that anybody wants to, mind you—but someone could easily replicate the app and the certification that the Government doesn’t even show which one is actually authentic. I have had many inquiries from businesses saying, “How do I know which one is, in fact, the genuine article? I can’t tell if these exemption certificates are genuine.”, and I feel—

💬 Hon Scott Simpson: Well, who’s using your phone?

Exactly. The thing is that, when the Government does not provide information to the businesses, I feel like when the Minister actually put in extra clauses in new section 23A to give power to the authorities in new section 34A(1)(b)—“enforcing the Act or a COVID-19 order (including for the purposes of proceedings against a person for non-compliance);”—people start worrying. It’s not just the people who are breaking the laws, because in Auckland we’ve been in lockdown for God knows how long—how many days is it? We forget.

💬 Hon Member: 99.

99 days. I was thinking it was 101 days, but maybe my calculation is out. For 99 days we have been in lockdown, and people are getting fatigued. They’re breaking the law. They’re breaking the rules. There are many reports. I get phone calls from constituents who are saying—you know, they didn’t want to report it to the police but I get the phone calls—“My neighbours are having a party. There are more than 10 people in their house; they’re inside their house.” It is fatigue, and the Government is not helping the communities. There are people who do not know the rules and it is not clear.

When the Minister says, “This legislation is needed.”, this is the clarity that the people of New Zealand actually need. I think it was Mr David Seymour who actually gave a couple of examples which I found quite humorous. When the Minister says, “This is the clarity that I’m providing to this House.”, I feel like saying, “Well, it’s like going to a pizzeria and ordering a pepperoni pizza and you get an old shoe.” It is just not good enough. I think the Minister needs to provide more clarity and give assurances to New Zealanders that they are prepared and they have been preparing, and it certainly shows that they haven’t.

Thank you, Madam Chair. This time I don’t have a glass of water on the desk, so that’s at least a good thing.

I want to raise an issue that has been brought to the attention of the House by way of an amendment from my colleague Simeon Brown, and it relates to the provisions of clause 7 in Part 1, where there are new sections inserted—sections 11AA and 11AB—into the principal Act. These are the provisions that require, when making COVID-19 orders under new section 11AB, that the Minister must consult. Now, consultation with ministerial colleagues is a logical and sensible thing, and I don’t think anyone would argue against that, but amongst the list of people or office holders that must be consulted, it says that “the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990;”. These are serious situations that are being considered.

So the Minister “must have consulted with the Prime Minister,”—that makes sense—“the Minister for COVID-19 Response,”—I think that makes sense—“the Minister of Justice,”—that makes sense—“and the Minister of Health;”—that makes sense. Then, at new section 11AA(1)(b), it says the Minister “may have consulted any other Minister as the Minister thinks fit;”, and that’s good as far as it goes. But there’s one very notable omission from that list of people that the Minister must consult with, and that is, of course, the Leader of the Opposition.

We are in extraordinary times, where the proper inspection and due diligence of parliamentary scrutiny has been put to one side, and this piece of legislation that we’re considering under urgency this morning is an example of that. One would have thought that in a Westminster democracy of the sort that we operate—or we thought we operated—under, it would have been prudent to include in this piece of legislation at least an opportunity for the Leader of the Opposition to be consulted on matters that potentially impinge on the freedoms, rights, and obligations of New Zealand citizens.

My question to the Minister is to why it would be that the Leader of the Opposition, and, potentially, leaders of other political parties in the Parliament, should not be consulted. What is the reason? In a democratic society, in an open and transparent Government, why wouldn’t the Government of the day want to consult on these serious matters with the Leader of the Opposition and, potentially, leaders of other political parties represented in this Parliament?

So my colleague Simeon Brown has an amendment on the Table that would move the following amendment, and that is an amendment to clause 7. In that clause 7, he suggests, at new section 11AA(1)(c)(ii), to insert a third option, which is “must consult with the Leader of the Opposition”, and I think that that makes perfect sense in a democracy where so many of the rights of individual New Zealanders are being put to one side.

One could argue that there are good justifications for limiting the ability of New Zealanders to travel and for creating rules that insist that they be kept in a particular premise, place, or space for the benefit and overall safety of the wider community and all New Zealanders. But we must never forget that these are actually rights and obligations that are being impinged, and we must do so sparingly and carefully and with due consideration. I would have thought that there is a very good argument that in this section of the legislation that we are considering today under urgency—without scrutiny of a select committee, without input from other stakeholders or interested parties—it would make very prudent sense for the Leader of the Opposition to be included. So I think that my colleague Simeon Brown’s amendment in this regard makes perfect sense, and I’m keen to see whether the Minister agrees with us on this side.

Thank you, Madam Chair. I’m very pleased to see the Minister for COVID-19 Response in a position to answer questions, because my question relates to clauses 4 and 10 around the authorised person. But before I do, I just want to add my comment to the response by Michael Wood on the support, apparently, from business and the unions for the framework for the assessment tool. What he, basically, told the House was that business went to him and said, “We want more regulation.” Well, I don’t know what businesses he talks to, but none of the businesses that I have heard from say, “We want more regulation.” Actually, they don’t mind illumination. They definitely want clarity out of this Government, but they ain’t asking for more regulation. In fact, there were protests down the main street of just about every metropolitan and urban area in this country asking for fewer regulations.

So with that point made, my question is this—and I think this is emblematic of this bill. We are seeing an amendment at section 5, under clause 4, to the definition of an “authorised enforcement person”. It means “a person authorised under section 18”, and then we go to the change to section 18, which says to replace in the heading of section 18 “Authorised” with “Authorised enforcement”. Effectively, what we’re doing is changing a title, because there are no other changes to section 18. Effectively, all we’re doing is saying, “An authorised person is now called an authorised enforcement person.”

So my question to the Minister is why on earth is this change being made? It feels like one of those Yes Minister moments where a committee of bureaucrats have sat around going, “Well, we haven’t described the authorised person correctly. We want to call them an authorised enforcement person.”

So the question is this, Minister: am I correct in assuming that the only change being made to the COVID response Act is to a title and that there are no other powers, constraints, or benefits being conferred on a person now known as an authorised enforcement person, who was previously described as an authorised person? If the answer to that question is yes, for me, that sums up the ham-fisted approach to this bill.

Thank you very much, Madam Chair. I just want to tautoko what Scott Simpson said, sort of—half. He said that—

💬 Hon Member: Too close to the Greens.

Beg your pardon?

💬 Hon Simon Bridges: Sitting with the Greens.

Oh, here we go. The National Party are stunned to hear a word of te reo Māori and it’s really knocked them for six. He said, “Kia ora.” That’s two words—well done. But I want to go back to what Scott Simpson said about the idea of consulting other parliamentary parties and the Leader of the Opposition.

Scott Simpson may be aware that back in 1992-93, there was a series of referenda where the New Zealand people brought in an electoral system called MMP, and it’s made the New Zealand Parliament a multiparty Parliament. I think it’s actually an excellent idea that Parliament be respected and that these kinds of orders do have consultation with other political parties. Usually, what we do is we trust the Government to govern for three years, but in giving them extraordinary powers like this, consultation across Parliament—and, obviously, I might seem a bit self-interested, but consulting other party leaders would be a very helpful addition to democracy. Some of the National Party leaders say maybe we should do the Leader of the Opposition based on polls. Well, I’m not in favour of that; I think it should be by the membership of the House. That’s a side issue.

I’d like to ask about clause 7 of the bill, the new section 11AA(2), which is very interesting because I think it gives a bit of a window into the Government’s priorities through COVID-19. What it says is that “For the purposes of subsection (1)(c)(ii),” which is the previous section, when making an order under this legislation to tell someone to stay in a place or do a kind of work if they’re vaccinated or whatever, or to not do a certain type of work if they’re not vaccinated or whatever, or not tested, then “the Minister—must be satisfied that the order is in the public interest and is appropriate to achieve the purpose of this Act.” It then goes on to say “ ‘public interest’ includes (without limitation)—”, and then it gives some examples. So it’s unlimited, but it gives some examples, and the examples it gives are: “ensuring continuity of services that are essential for public safety, national defence, or crisis response:”—OK—then it says, “supporting the continued provision of lifeline utilities or other essential services:”; then it says, “maintaining trust in public services:” as though this may be something that the Government senses is in danger recently; and then, finally, “(d) maintaining access to overseas markets.”

Now, I’m not opposed to that. I think New Zealand is a trading nation and certainly, as a party, ACT has been very consistently in favour of New Zealand’s status as a trading nation, and recently, to their credit, so has the Labour Party. But it’s not so long ago that the Labour Party was running around with the anti - Trans-Pacific Partnership crowd—you might call them the racists and anti-vaxxers of 2016—and yet they’ve managed to come round to that.

So being in favour of access to overseas markets both as importers, consumers of overseas goods, and also as exporters is very, very important, but it raises the question of what happens with domestic markets. If it’s important to be able to buy and sell goods that are presumably non-essential with foreigners, then isn’t it important to be able to trade within New Zealand as well?

I’ll just give a couple of practical examples that I’ve dealt with as a local MP. I had until recently a case that’s, thankfully, been resolved after two weeks of back and forth with various Government agencies. A constituent had a small group of lift engineers—elevator engineers. They needed to travel from Auckland to Tauranga to inspect and enliven those elevators so that they could pass a disability inspection and a $200 million residential and retail complex in the Tauranga CBD could open. It was the only thing that was holding it back for several weeks. It was really, really difficult to get the officials to agree that these half a dozen lift engineers should be able to go to Tauranga. The same lift engineers had just recently travelled to the Waikato and actually into the Bay of Plenty to help fix a lift at a retirement village. Now, how is it possible that one of those is essential and the other one is somehow not?

So the question to the Minister is: when they made this list of things that are in the public interest, why did they include trade with foreigners but not trade with other New Zealanders? Surely, our economic wellbeing is important, too.

I move, That the question be now put.

The question is that Chris Bishop’s tabled amendment inserting new clause 4A to require a review be agreed to.

The question is that Chris Bishop’s tabled amendment to clause 6 inserting new clause 6A to repeal provisions in the principal Act relating to laboratories be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 6(2) to amend the new section 11(1)(b)(iv) relating to having received a negative test for travel be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 6(3) inserting new section 11(1)(ia) to exempt places of worship or religious premises be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 6(3) inserting new section 11(1)(ia) to exempt funeral services or tangihanga be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 7 to replace “may” with “must” in new section 11AA(1)(c)(i) be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 7 inserting new section 11AA(1)(c)(iii) requiring consultation with the Leader of the Opposition be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 7, inserting new section 11AA(1)(c)(iii) requiring a New Zealand Bill of Rights Act assessment be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 7 to insert new section 11AA(1)(d) requiring the Minister to table all advice considered in making orders under section 11AB be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 7 to insert new section 11AA(2)(e) relating to protecting individual human rights be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 7 to insert new section 11AA(2)(e) requiring restrictions to be the least restrictive as far as reasonably practicable be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 7 inserting new section 11AB(1A) to exempt places of worship or religious premises be agreed to.

The question is that Simeon Brown’s tabled amendment to clause 7 inserting new section 11AB(1A) to exempt funerals or tangihanga be agreed to.