COVID-19 Public Health Response Act 2020 — Continuation

I move, That the COVID-19 Public Health Response Act 2020 is continued and that the relevant period under section 3(2)(b) of that Act is the period ending 30 June 2022.

The COVID-19 Public Health Response Act was passed in the early stages of the global pandemic. It is the law that gives the Government of the day the ability to issue orders around things like vaccination, around testing, around quarantine at the border, around pre-departure testing, and around all of those other things that might be required to manage the ongoing effects of a global pandemic. Because of the sweeping nature of the powers contained within that legislation, additional safeguards were built into it. One is that the law itself expires. It has a sunset provision, which means that the Government will have to determine—and that sunset provision’s currently set for, I think, mid-2023. The Government would either have to come back to the House with another bill to renew that legislation, or it will disappear. It also has a requirement for periodic renewal by the House. That means that, roughly, every six months the Government has to present to the House a motion like the one we are presenting now, which allows for the Act to be continued. So we are currently proposing that the Act be continued until the middle of next year, by which point we will either have to pass another motion to continue to extend it or again it will expire.

The global pandemic has created huge disruption around the world and here in New Zealand. I think there are many people, myself included, who look forward to the day when the global pandemic is over and life can get back to normal and we can all get back to doing the things that we all love and enjoy. The reality is that the global pandemic is not yet over and we don’t know when it will be over. There is still significant uncertainty, and particularly uncertainty around the potential for new variants.

Omicron has appeared, and we still have yet to fully understand it. We do know that it’s likely to be more infectious. More people are likely to get it. Anecdotally, we’re seeing evidence that more fully vaccinated people will also get it. What we don’t yet know, though, is what the effect of that will be. Is it more viral than earlier variants? Does it have a greater health impact or does it potentially have less of a health impact? That is still a big, unknown question, and we’ll learn more about Omicron over the coming weeks and months. So we need to be ready to adapt and evolve, depending on what that new information, what that new research, and what that new evidence tells us.

In the meantime, New Zealand is incredibly well placed. So we have very low rates of transmission in the community. We have a very high rate of vaccination. We have good surveillance testing, and it’s encouraging to see that our surveillance testing rates are remaining very high, and so we are well positioned. Next year, we do want to be able to, early in the year, open up the international border and see much greater movement in and out of New Zealand again, and we’ve set out a pathway to do that.

Many of the things that we are doing now still require this legislation to be in place. For example, the requirement, at the most basic level, for people to be either vaccinated or to get a pre-departure test—so for New Zealand citizens, they will need a pre-departure test before they come home to New Zealand; for non-citizens, they will need to be fully vaccinated. Just that requirement alone depends on this Act continuing to be in existence. The traffic light framework, which New Zealanders are all now becoming familiar with, requires this legislation to be in place. The vaccination requirements that exist for our front-line border workers and for many of those other workforces require this legislation to be in place. So we are not yet through the global pandemic and, therefore, the need for the powers that are in this legislation to remain in place still exist.

I do want to say, as I’ve said on many occasions in the House, that I acknowledge that these are extraordinary times and that this is an extraordinary piece of legislation. It is one that in an open and liberal democracy, we should aim to have on the statute book only as long as it is absolutely essential to have it. This should not be seen as the beginning of a different way of doing things for New Zealand and is certainly not the way the Government views it. We view this as being a necessity at this point, but it should only be available to the Government for as long as it is an absolute necessity. As soon as more regular decision-making processes can resume, we should absolutely be doing that.

So I have a mixed degree of emotion in moving this motion in the House today, because as the person who has the weight of the responsibility of making orders under this legislation sitting on my shoulders, I am very much looking forward to the day when that will no longer be the case. Unfortunately, that is not today. So that is the reason why the Government is proposing to extend the life of this Act.

The question is that the motion be agreed to.

Thank you very much, Mr Speaker. The National Party will be opposing the extension of the COVID-19 Public Health Response Act 2020, which, as the Minister for COVID-19 Response notes, was passed in a time of extraordinary circumstances in New Zealand and around the world, and, as he notes, the pandemic continues. The Act has been changed, most recently last week or the week before, to give the Government the framework, the apparatus, to implement the traffic light framework. So the Act has undergone quite some amendments in the last 18 months since the pandemic started, and the Act is now a reasonably complicated Act to decipher. You have to go into the orders that passed under the Act to make sense of it as well. In some ways, that is, of course, a consequence of the fact that the Act was passed very quickly, but the variety of amendments that have been made to the Act have made it a complicated one to decipher.

We will be opposing this for three major reasons. The first is in relation to mandate and vaccine certificates, and I want to spend a little bit of time dwelling on this. One thing that has become very clear from the last couple of weeks is that there is real unease in quite some segments of our community around the division created by the vaccinated and the unvaccinated. Now, at a level, that is always going to be the case. We don’t have mandatory vaccination in New Zealand, for the general population—we have it in some circumstances for people doing particular jobs—and I’ve never seen the Government, to be fair to them, put forward the proposition that we should mandate vaccination. Vaccination’s a choice; that would run into extraordinary New Zealand Bill of Rights Act problems, let alone the ethics and the morality of doing that, although I note that some countries are actually looking at that.

So the Government has never put that forward as a serious proposition. But the reality of a population where 90 percent, 92 percent—hopefully, more—of people choose to be vaccinated does create some real issues in terms of division between those who choose to be vaccinated and those who choose not to be vaccinated, and that is made more complicated by the legal regime that the Government has instituted, which is the traffic light framework, which gives extraordinary freedoms to those vaccinated, but has the converse effect of creating quite some restrictions for those who are unvaccinated. There is unease in the community about this. In a funny way—well, not a funny way; in a way, it is inimical to the traditional notions of freedom of movement, freedom of association, in New Zealand.

So one question that I think is going to become increasingly important to answer in the coming weeks and months as our vaccination rate goes to 90 percent double dose in many regions, and countrywide and beyond, is at what point do the mandates and the vaccine certificates fall away? We’re just a little bit behind the rest of the world in this, because even Daniel Andrews in Victoria is now talking about the time at which the need for certificates and the need for mandates will fall away. They’re talking around the 90 percent figure; well, we are soon going to be at that figure. Vaccine mandates have been used as a blunt mechanism to drive up vaccination rates in New Zealand. But at some level, the need for them will fall away. I’m not positing a particular view here, I’m not suggesting a threshold—I don’t have access to the public health advice that the Government has—but I think we are going to confront that question at some point in the next few weeks and months, and we’re going to have to have an answer from the Government as to how long that legal regime is going to continue for.

Now, this motion extends the Act through to 30 June 2022, and I’m telling the House now that between now and 30 June 2020, we are going to have to have a good discussion as a polity and as a Parliament around those certificates and those mandates and how long they’re ongoing use is going to be necessary for, because there is quite some community unease out there around it. Personally, I’m a supporter of vaccination certificates; I’m actually very comfortable if bars and restaurants and hairdressers choose to use them based on the principles of private property, free enterprise. If a barber wants to say, “You can only come here if you’re vaccinated.”, I would support that, and, frankly, I’d probably—I don’t go to a barbers—only go to a hairdresser that chose to do that. The hairdresser I’m going to tomorrow, because I’m desperate for a haircut—I know my hairdresser would do the same thing, because we’ve had a conversation around it, and they would choose to do that. There’ll be others who don’t. There’ll be other hairdressers who will say, “Actually, you know what? I’m comfortable cutting the hair of someone who is unvaccinated, because I’m vaccinated.”, and maybe they’ll have to have a test. So we’re going to have to have a conversation around that. So that’s the first issue.

The second issue is the Act continues the highly restrictive border regime that we have at the moment, and it’s the National’s Party’s view that the time has come to dismantle the very complicated regime to do with managed isolation and quarantine (MIQ) that the Act allows. Our view is that MIQ made sense in April-June—most of 2020; in fact, most of this year—but, increasingly, makes little sense. Here are the numbers: 27 people who are border cases are in quarantine right now out of 4,000 or so rooms. Just 27—I think it was 38 a couple of weeks ago; it’s now down to 27. There are 308 community cases of COVID in quarantine facilities, but there are over 2,000 people isolating at home with COVID, in the community.

So we have a situation where fully vaccinated travellers are coming into New Zealand, having passed the pre-departure test—so they’ve got no COVID, at least when they get on the plane—they’re fully vaccinated, they arrive in New Zealand, and they are going into MIQ facilities even though they don’t have COVID; whereas people with COVID who test positive in the community as part of this outbreak isolate at home.

Just yesterday, the Parliament considered an urgent debate in relation to the treatment of people with COVID in the community. What we know from the Northern Region Health Coordination Centre’s report is that treatment is lamentable at the moment and should be better, and the reality is those people, many of them, would be better treated in quarantine facilities, but they can’t be there because the quarantine facilities are being taken up by people who are fully vaccinated, without COVID—which doesn’t make a lot of sense. And that’s even before you consider the enormous hardship caused by the MIQ regime generally, and everyone in this Parliament will know someone, or know a family or a constituent, who has been affected by these highly restricted border settings. I call it the lottery of human misery, and I call it that for a good reason, which is that it is a lottery and it does create enormous human misery.

So our view is that we should be dismantling MIQ. I really worry about whether or not it is consistent with the New Zealand Bill of Rights Act. There’s a case that I know the Attorney-General will be aware of from grounded Kiwis that’s going to be heard in the new year. I think that will consider that particular issue. The legal talk around Wellington is that the Crown is very worried about this case, because, as Murray Bolton showed in his case, which dealt with a particular set of circumstances, I know, but really exposed the Crown’s legal risk when it comes to the consistency of the MIQ regime with the New Zealand Bill of Rights Act, which, of course, gives rights to New Zealand citizens to return to New Zealand. So we oppose the continuation of the Act on those grounds.

Then the third thing, very briefly, the requisition of testing capacity clause, which Parliament again recently passed and will now be extended by this motion, is abhorrent to the rule of law and private property. It’s the Rako Science theft clause. It gives the Government the power to steal their property basically because they don’t like the fact that they’ve been calling out the Government’s lamentable response to saliva testing. That is not a sensible position. It is not a morally just provision. We opposed the bill to put that in place in the first place, and therefore we oppose the continuation of the Act as well. Therefore, we will not be supporting this motion.

Kia ora. E te Māngai, tēnā koe. On behalf of the Greens, I rise in support of this motion. This does provide the framework we need for vaccine mandates and certificates, but I very much look forward to the day when we do not need any of those things. This is the world we’re in right now and for the foreseeable future. I know from the experts that we’re talking to that this is years and not months.

We have stood by the Government consistently in this strong health response. We’re proud of our record compared to the rest of the world in terms of fewer case numbers, hospitalisations, and deaths. We particularly acknowledge how hard our health workforce have been working and we’re really, really proud of our iwi and Pasifika community and health providers and disability workers on the ground. We would not be where we are without them. But we have raised our concerns with the detail of some of these strategies, particularly the lack of a Te Tiriti o Waitangi focus or an equity approach, which would have seen much quicker vaccinations for Māori, and we wouldn’t be in the situation we are now with counting down every day to see where our numbers are at.

Next week, the Auckland border will be flung open, and we echo the voices of iwi leaders that say, “Please, do not holiday in places with low vaccination rates, even if that might mean not being able to go home and see your whānau. Please think of the health of that whānau and the health of those communities before you head over there.”, because we’re in the honeymoon period right now. We’re seeing case numbers coming down, but we know that it won’t be long before we see the spike happen again. That happens every time that there’s a relaxation, either of the alert levels or, in this case, it’ll be the Auckland border.

Moving forward, we hope to see a really tight suppression strategy outside of Auckland so that where cases occur, they’re stamped out and people are very much looked after, because we do not accept that COVID should just be allowed to spread in the rest of the country, and we’ll see what happens. People are at home, and we let that continue just enough until the health system is not overwhelmed.

But I want to focus mostly on home isolation. We had our special debate yesterday about the deaths that happened in Auckland—largely preventable deaths—and we do not want to see that happening any more, and we know that the health system has done a lot of work in addressing those, and some of the issues that were raised in the report had already been in place by the time the report was released. However, for those of us who live in the regions, those of us who live in rural areas, we know that we don’t have access to the same health support as some of the cities.

As we’ve seen, already, the capacity that’s required to get our people tested, to get our people vaccinated—we’re going to need even more needed for people who have positive cases and are in their homes. Who’s looking after their whānau? How on earth do they self-isolate in areas where there’s a massive housing crisis and, for example, in the Tai Rāwhiti, where many of the motels are already used up as emergency housing. Where are these people going—and a shout-out to those people who are coming up with really innovative solutions, and particularly marae who are opening their doors for whānau who are not positive, so it allows their positive person to stay home, and then they can be somewhere else that’s safe and they can eat and get on with the rest of their lives.

We’re going to need much more resource going into looking after those people, because that’s the goal. People might get sick; they get looked after. They have proper health professionals doing the assessments of them. They have GPs who are resourced to actually go and visit them to check on them. If they’re given something like an oximeter to use, they’re properly trained in it, and the technology that’s required to run all of the system to monitor all the people who are staying at home—those systems are all in place, they’re well tested, and all the technology is working.

I just wanted to finish to talk about the border. I think of it as a type of insurance that if we need to clamp down because, for example, Omicron is coming, but there’ll be other variants. This virus is not going anywhere. It’s very dynamic and clever, and so we totally support people having shorter stays. We agree with our colleagues who say, “Well, why on earth are we taking up beds of low-risk, fully vaccinated people in MIQ when there’s many, many more of our whānau who need to come home?” We absolutely support our people coming back to this country. We definitely support more health workers being brought into the country to supplement our workforce. However, we do not agree with the dismantling of that infrastructure. We think we’re going to need it for quite a while longer, and if there’s room left over after all our people have come home, then we absolutely need a backup space to put our positive cases who have nowhere else to go.

I hope that we don’t have many more times that this bill continues to come back into the House, but in the meantime we support this. Kia ora.

Thank you, Mr Speaker. I rise on behalf of ACT in opposition to this motion to continue the COVID-19 Public Health Response Act. Just to put it into a bit of perspective for anyone who may have woken up, switched on the telly, and wondered why Parliament is sitting at 9 in the morning, this motion is to continue the COVID-19 Public Health Response Act that, very wisely, has a self-extinguishing clause. So every 90 days, if Parliament doesn’t actively put it back in place, then the COVID-19 Public Health Response Act extinguishes itself. I actually think all laws should have something like that—perhaps not every 90 days, but if we had to look at the laws that we have on a periodic basis, I suspect a lot of them would not be continued.

Now, the ACT Party, I think it’s fair to say, has taken a constructive and consistent approach to this law throughout its life. We initially voted for it when it was introduced to first reading last year—I think it was last June. We did that because we saw that it was better for Parliament to write down what the law was than to have the Government making it up ad hoc. We know that, for example, the initial lockdown last March was actually illegal, and the Attorney-General at that time was slammed as one of the worst performing Ministers by senior journalists at the end of the year because they couldn’t get the paperwork right. That’s been a theme throughout.

So we thought, look, passing a law that actually tells people what the procedures are and what their rights are was consistent with a free society, and we thought it would be good to have. But we also asked, while this law was initially being debated last June, if some concessions could be made. For example, if somebody was going to be an enforcement officer under that law, we wanted them to be accountable as well—totally unaccountable. ACT ended up opposing the law in the third reading because they weren’t prepared to play ball.

But once it was in place, we said, “OK, look, we’ll watch how the Government uses it, and if they don’t abuse the law, then we’ll keep voting to roll it over.” So we have, because we’ve felt that actually, while there are many failings in the implementation, we didn’t feel that the Government had abused this COVID-19 Public Health Response Act, and therefore we kept voting for it to continue.

Today, we’re voting that it should not continue, and there’s a few reasons for that. Most of them stem from the way that it’s recently been expanded, and there’s a couple of changes in the COVID-19 Public Health Response Amendment Act (No 2) that was rushed through Parliament under great urgency just last month that I think are inconsistent with a free and democratic society. Now, we heard Chris Hipkins, and he’s sort of like that guy in the cartoon that’s got the angel on one shoulder and Beelzebub on the other. He knows that he wants to be a parliamentarian and a democrat, and uphold the tenets of a free society, but then someone goes and makes them do all this crazy stuff.

One of them is the fact that this law now allows the Government to confiscate people’s property. Actually, when you read it carefully—and I don’t know whether the Attorney-General has been through this whole saga, to be honest—it actually allows the Government to direct a person to do particular things. I’ve had at least one QC tell me he thinks that, arguably, it is enslavement of citizens. Well, I’ll leave that to one side. The idea that the Government can just take a business’s property beyond all the usual commandeering and emergency measures that Governments have already, was deliberately set out as utu because the Government was in what I call a spat with the saliva testing company, Rako Science. I just think that’s disgraceful. I’m proud that this side of Parliament acted, and our National Party friends actually stood up and said, “That’s wrong. We oppose it.”, because no one on that side of the bench could stand up for any kind of principle, either because they weren’t allowed to by somebody, or perhaps they just hadn’t seen it. I think that law has to fall.

So that’s the first reason. The Government shouldn’t go around pinching people’s stuff. In a free society, the Government’s supposed to stop other people pinching your stuff, not join in with it, which is what this Labour Government is now doing.

The second thing I say is that in that law, when it was amended last month, were new provisions that a person can be made what’s called an enforcement officer, and that person can become a road-blocker, for want of a better term. That person can go and set up a roadblock and stop other New Zealanders from exercising their New Zealand Bill of Rights Act ability to move freely about the country. That person can actually stop you going up North—perhaps to your home—and check your vaccination status. I think that that is absolutely wrong. The only time it’s justified to have your New Zealand Bill of Rights Act right to move around the country limited is when it’s justified in a free and democratic society.

Now, here’s the thing: in a free and democratic society, we have official advice from the Director-General of Health about what the public health requirements actually are. The Director-General of Health, we now know, because he told the Waitangi Tribunal—although the Government would never release public health advice within two weeks of receiving it to the rest of New Zealand. But the Waitangi Tribunal found out that just two weeks ago, Ashley Bloomfield said that the Auckland border has served its purpose.

So here’s the question for the Government: why are they setting up these police- or is it iwi-led checkpoints? Is it the case that there is a public health need and that iwi are helping out as enforcement officers? Or is it the case that Hone Harawira, who represents no one—and we’ve actually tested this, because we had a general election and the people of Te Tai Tokerau voted him out—is saying, “I’m going to do it anyway.”, and the Government has decided to save face by sending the cops along to babysit them?

This stuff really matters at a constitutional level. It’s not clear who is truly directing the police anymore. Are the police there because Hone Harawira has decided to set up a checkpoint, or because Ashley Bloomfield thinks there’s a public health justification? Well, we know it’s not Ashley, so what, by source of elimination, is the remaining answer? Does this mean that anyone who’s got a grievance against Government policy can block the roads and the cops will come along and help? Because if that’s the case, we have abandoned the conventions of the rule of law that have stood New Zealand in good stead for many generations, and it’s happened on that Attorney-General’s watch. I think that is shameful. That’s why this law cannot continue.

But then there are wider questions around COVID management. Is this Government really still up to the task? I’m sure that the Labour members on the Government bench are getting some of the same public opinion research—well, actually, we know they are, because we just received an Official Information Act response, and it’s a doozy—that is saying that the public no longer have faith in this Government’s COVID response. That’s the truth, folks. That’s the truth. Because they’ve watched a Government that thought that they had it all under control, that Delta would never get here, and if it did, managed isolation and quarantine would stop it, and if it got through, the vaccines would be ready. None of that was true. So now it’s helter-skelter.

Now, this morning, Andrew Little actually had to call in to breakfast TV. You wouldn’t believe this. I don’t know; you guys probably don’t know about this. He actually had to call in and dispute what the nurses are saying, that actually the hospitals aren’t fine—“We’re very stressed because you just froze our pay as inflation took off.” That’s another wee problem with the COVID management response. You’re so disorganised, we don’t have saliva testing in the hospitals at the right time. I mean, the old health Minister went off mountain biking in the middle of a pandemic.

The public, the nurses, everybody is losing confidence in this Government’s management of COVID. It is so incoherent. There are so many things that just don’t make sense. For example, this law allows the Government to make rules about the response at the border. Now, riddle me this: it’s not safe for vaccinated, negative-tested New Zealanders to come into the country and to isolate at home, but it will be on 16 January. It is safe right now for New Zealanders who we know have COVID, because the Government tested them and they were positive, to isolate at home. So thousands of people are missing out on opportunities, missing out on work—oh, but here’s the thing, and here’s this Attorney-General who has got so much to answer for. I hope he will get up and take a call. Because if you go to court and ask the right questions, none of those rules apply to you. Who designed that law? Why isn’t it consistent with the New Zealand Bill of Rights Act? Well, the courts don’t think it is, and they’ve got real trouble coming in the new year, as one of my colleagues alluded to.

So this Government doesn’t deserve this law anymore. They are not competent or capable of managing it. The public increasingly see it, and they are going to see more of the kind of defiance that they got from BusinessNZ this morning, because everyone knows that this Government is trying to back out, but its back’s against the wall. That’s why this law should be withdrawn. The Parliament shouldn’t let them have it, and I can’t wait to see what’s about to come. Thank you, Mr Speaker.

Thank you, Mr Speaker. As my colleague has advised, we will be opposing this bill. The three prime reasons are the scope of the mandate and the life cycle that goes with it; the second point is the managed isolation and quarantine (MIQ) disconnect, which I may come back to, which my colleague has spoken to here, with returning travellers; and the third point is the requisition of privately held equipment—effectively, the nationalisation of private possessions and property.

I think that another reason we’re going to struggle to support this bill is that we haven’t been a learning environment during this COVID outbreak. What that means is that what we’re doing here is that we’re being asked to roll over legislation that may have been approved in some areas but that in others clearly hasn’t. I want to point to some areas that I think should have been approved if we were to be a learning environment and doing more than just rolling over default legislation.

In particular, I’ve been interested in the part of this bill that commissions the testing procedures both offshore and onshore. If I start with offshore first of all, the pre-departure testing, it has continued to elude us why rapid antigen testing was an accepted pre-departure test but has not been ubiquitous in New Zealand. How can we rationalise that? How can we say, “Yes, this is a test that you can have legitimately at Heathrow Airport, or wherever you wish, we’ll accept it, but here in New Zealand, no, we don’t accept it.”? That’s really hard to understand, I’m afraid. There’s a number of reasons why we’ve got issues with rapid antigen testing; some of which, I believe, will only come to see sunlight with a royal commission of inquiry, and, I imagine, it will be along the lines of what the Office of the Attorney-General found with saliva testing—that there’s been unexplainable hurdles that haven’t followed the science, and I think rapid antigen testing is going down that same path.

I want to talk to the onshore testing as well and whether we really want to roll over the default positions that we have at the moment. I want to talk to the testing in MIQ, which has sort of expanded from what was initially pre-departure, offshore, day zero, day one, day three, day five, then day eight was added, and day 12. The argument to—and I still don’t understand why day three testing is voluntary in MIQ, why it’s the one voluntary test. It should be mandatory right on day one; I find no plausible explanation for that. But the default response has been, through all of testing, “Don’t worry, we do day 12 testing. That exit testing before people leave MIQ saves everything. If we’ve missed something in day three, don’t worry, we’ll pick it up in day 12.”

Here’s the problem I’ve got with that, and it talks to us still not knowing the portal by which Delta entered New Zealand in the first place—here’s the problem I’ve got with day 12 testing and that answer that it is our safety net—“Don’t worry, we’ve got day 12 testing.” The problem I’ve got is that from 1 April, when Delta arrived, through to 3 September, 191 people didn’t have day 12 testing. How can that be? If it’s our safety net, if it’s “Don’t worry, we’ll do the day 12 testing.”, why did 191 people not receive their day 12 test?

Now, if you look at this a bit further, it turns out that 34 of them had their test done in hospital. That’s fine. We can take that off the list. For 44 of them, the test was not required, because it had been done before day 12, like within 24 hours or so. That’s a reasonable explanation as well. That still leaves 113 people who didn’t have a day 12 test. Let’s drill into them a bit more. It turns out that 32 of them were aged six months to 17 years; 14 were exempted on clinical grounds, four were exempted because they didn’t give consent—how can you not give consent to a day 12? And, by the way, they didn’t stay for another 14 days, which is what happens if you don’t have a day 12 test; you just stay till 28 days. Four didn’t give their consent, and 63 were aged under six months.

Now, it’s that category that I want to just look into for a moment and put to the Government that instead of just rolling over the current legislation, maybe we should be doing a better job here, because those under-six-monthers—the 63—it’s not that we don’t test children under six months; we actually do. It turns out that 17 under-six-month-olds had received a nasopharyngeal test.

What we do for six-monthers, if you’re worried that it’s the same sort of thing that we do for adults, is we use what’s called a high-turbinate swab, which is a much gentler swab. It doesn’t go quite as far back into the infant’s nasopharynx, and we get a result from that.

My concern here is that—instead of Australia, that has said everyone who enters their MIQ, be you an infant, an adult, whatever, you are all tested—we still have this pervasive rule that infants under six months don’t need to be tested. That’s the concern I’ve got. We know they catch Delta, because we had a six-weeker in Northland base hospital, but we still have the policy that infants under six months don’t have to be swabbed in MIQ. Seventeen clearly said, “Oh, I’m worried. I’m going to go ahead and do that.” That’s fine. But that still leaves a large number.

My question I’m raising is: is this the mechanism by which Delta entered New Zealand? Did it inadvertently actually come from an infant who wasn’t swabbed, by exemption, and that’s how it entered New Zealand?

If I look into that a little bit more, if we look at the 17 August outbreak and look at a month before that, so let’s choose our prime period when we’re most concerned about Delta coming into New Zealand in this current outbreak. We know it came from New South Wales, so we can filter it down a bit more. How many people in that month before our current outbreak came from New South Wales into New Zealand and didn’t have a swab? The answer to that is two. There were two people who in that key period, just before Delta came here, were not swabbed when they came into New Zealand. One was a child aged under six months, and the other had their day 12 test completed at a hospital. So we know at least one infant under six months came from New South Wales, where our Delta variant, we know genomically, outbreak started, in that month before our outbreak started, and exited MIQ without being tested.

Is it possible, inadvertently, that that is actually where our outbreak started? If it is, I’d commend to the Government that rather than rolling over pervasively what we accept as the best policies, maybe we should look at Australia, who’ve said, “No, no, no, everyone, even infants, need to be swabbed if they enter isolation. The risk is too great.” We shouldn’t have this arbitrary six-month cut-off; we should be using the high-turbinate swabs for infants, and just shut down that other possible mechanism for infection in New Zealand.

So this is but one example of the learning that we haven’t undertaken, that we haven’t adopted and taken on board to improve the legislation that we’re being asked to approve here this morning, and it becomes one of the reasons why we’re going to struggle with this bill and why we’re saying a no today. There are some good things that have been done—don’t get me wrong—but there are also some holes, some gaps that are still there. This is the sort of legislation that should be fixing those gaps before we just sign them through the day.

So that’s why it’s a no from me. That’s why it’s a no from us on this side of the House, on behalf of the National Party. We need to be a learning environment and take into account all the findings that we have, so that we truly bring the science to this sort of outbreak, to the protections that New Zealanders are asking us to put forward, and simply we need to be doing a better job. Take on board that this is us offering collaborative suggestions with hard data as to how we can do a better job. That’s the mode that you’re seeing here. Thank you, Mr Speaker.

Thank you, Mr Speaker. I rise to take a call as to why it is necessary to extend the COVID-19 Public Health Response Act 2020.

Could I point out the irony of the comments from Dr Shane Reti. Dr Shane Reti is a very competent doctor and physician who has practised at leading teaching institutions internationally and really does know his onions about these issues. When he criticises the testing regime of the Government, the Government does listen. He just said that we need to do more testing pursuant to rules that Government set at the very time when his leader is forcing him to vote against a bill that is the legislative framework that sets out those testing regimes. Those testing regimes are found in orders that are passed under the COVID-19 Public Health Response Act, and if that Act drops away, you can’t do it, Dr Reti. I think Dr Reti knows that, but this is part of the Luxon let-it-rip campaign where they’re—

💬 Hon Member: Ha, ha!

Well, there must have been a decision taken by the leader. I cannot believe that in the first two weeks of a new leader, the new leader is not responsible for this change of position by the National Party whereby they are saying that the Act—until now we have had relative agreement across the House that we need the powers that sit in the COVID-19 Public Health Response Act.

Can I deal with what I thought was quite an unnecessarily cynical and, at times, personal attacks from the leader from the ACT Party. The ACT Party, of course, has got absolutely no credibility on these issues because they again voted against the original Act. They’ve always opposed the legislative framework that has underlined the exceptional performance of New Zealand which has relied upon the rule of law which has flowed from the COVID-19 Public Health Response Act.

Now, I can understand him maintaining the consistent position he has, that he opposes the Act, but for him to misrepresent—for him to misrepresent—in this very important debate what he knows is incorrect because he heard the answers from the Prime Minister and from Minister Hipkins earlier in the week—

💬 SPEAKER: No, no, no. Order! Order! Order! I hesitate to interrupt the Minister, but he has accused a member of deliberately misrepresenting something in this House, and that is something that he cannot do.

I take back that it was deliberate, but for him to be so incompetent as to misrepresent—

💬 Hon David Bennett: He can’t debate it—can’t debate it.

—what has been explained in the House; when he attributed—

💬 Hon David Bennett: How’s he get away with debating that?

💬 SPEAKER: Order! Order! Sorry. David Bennett, I have ruled on a matter. The member is relatively ignorant of the rules of the House. He should not attempt to correct me as while another member is speaking. He knows if he has a point of view he takes a point of order, but he also knows that if he takes a point of order, he will be ridiculed.

The point that the ACT leader, David Seymour, made in his contribution was to attribute to the Director-General of Health a statement that the border around Auckland should go and that it wasn’t necessary. He knows that that is a misrepresentation of what the director-general said because—

💬 SPEAKER: Order! Order! Order! Well, yeah. I am going to ask the Attorney-General to take some more care with his wording. Just to make absolutely clear: people can and do make mistakes in this House and misrepresent things; the difference is if they knowingly do it or deliberately do it then that’s a breach of privilege and you cannot accuse someone of a breach of privilege by way of a speech.

I accept that, thank you. He should know that that is a misrepresentation of what the director-general said, because he was in Parliament when that was explained by both the Prime Minister and the Minister the Hon Chris Hipkins, because that statement was for the release of that border in mid-December, which is what is happening.

There’s also been repeated accusations that somehow the Government’s imposing a higher level of restriction post the release of that border by transitioning different parts of New Zealand not at green. Again, that misrepresents the advice of the director-general because it attributes to the later advice the earlier advice, and the director-general changed his advice in the meantime.

Can I also point out that Chris Bishop says that we should be again letting it rip, doing away with managed isolation and quarantine. Pursuant to that, he said that from his point of view, there’s only 27 active cases in managed isolation and quarantine at moment that have come across the border. The point that the Government has made repeatedly is that those 27 cases released into the community would seed cases into the community. They would seed cases into the community in areas where we are not having to deal with outbreaks at the moment.

In respect of this idea that somehow we could repeal this Act or not allow it to continue and properly manage pandemic is just incorrect, because the underlying health legislation—as most people, I think, in New Zealand understand and accept—is not suitable for dealing with the COVID outbreak. The Health Act powers that would then default are much less granular, and in some ways they are not subject to the same checks and protections that arise under the COVID-19 Public Health Response Act.

I’m going to list the protections that are in this Act that would not be in the underlying law. One, it makes Ministers rather than the director-general responsible for the main orders under it. That ministerial responsibility is very important; it requires the Minister to be satisfied that each and every order that the Minister makes is justified under the New Zealand Bill of Rights Act. It limits the powers in the Act to the COVID pandemic. The Act self-repeals every 90 days so that we can have a debate like this in the House. Orders made under it are revoked unless Parliament, within 60 days, generally—generally it happens a lot faster than that, but up to 60 days, generally. Unless the orders are endorsed by Parliament, they are revoked. The Act puts the orders under it within the purview of the Regulations Review Committee, chaired by an Opposition member, and if I could compliment the work that Chris Penk has done in that role and the work that the committee has done. Those reports on each order come to the House, and the drafting of subsequent orders and the terms of them have been improved as a consequence.

The bill expressly preserves the role of the court to judge orders against the New Zealand Bill of Rights Act and requires orders to minimise intrusions into civil liberties. When we passed the Act, we even went to the trouble of replacing me as Attorney-General for the purposes of the New Zealand Bill of Rights Act and it got a clean New Zealand Bill of Rights Act report because it was proportionate to the crisis that we are facing.

We do not shy away from the rights of citizens to challenge these orders through the courts. We’ve expressly preserved their right to do that and we engage in those court cases. By and large, the actions of the executive have been upheld by the courts. There have been some areas where there have been criticisms, and those criticisms have been responded to.

In respect of the generalised assertion from the ACT leader that the lockdown in the first nine days was illegal, again, that’s not really a proper way of describing what happened. During the first nine days of the lockdown, the statements by the Prime Minister and Mike Bush at the time encouraging people to stay home in their bubble were not backed by an order under the Health Act; this was before the COVID response Act. The court found that during that first-nine day period, those instructions became increasingly directive, and therefore they were critical that by the end of the nine-day period, they thought that a formal order should have been made earlier. They said it was completely justified to do what had been done, but they found that in respect of that early period, until a second order was made on the Health Act, which expressly was even more directive than the instructions that the Prime Minister and Mike Bush were encouraging people. They said during that period, it crossed the line from encouraging people, as we went into that transition, into a strict lockdown. They said we should have made an order earlier, and we accept that.

Without this Act in place, we can’t have provisions at the border as we have. We can’t have the self-isolation mandates imposed. Some of these things can’t be done under the Health Act because it’s predicated on a form of quarantine that doesn’t fit the COVID outbreak. This is absolutely necessary to carry this Act forward. I endorse the motion to the House.

Motion agreed to.

I declare the House in committee for consideration of the Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill and the Births, Deaths, Marriages, and Relationships Registration Bill.