COVID-19 Orders — Approval

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

COVID-19 Public Health Response (COVID-19 Vaccination Certificate) Order 2021

COVID-19 Public Health Response (Air Border) Order (No 2) Amendment Order (No 14) 2021

COVID-19 Public Health Response (Vaccinations) Amendment Order (No 5) 2021

COVID-19 Public Health Response (Vaccinations) Amendment Order (No 6) 2021

COVID-19 Public Health Response (Protection Framework) Order 2021

COVID-19 Public Health Response (Infringement Offences) Amendment Order 2021

COVID-19 Public Health Response (Protection Framework) Amendment Order 2021

COVID-19 Public Health Response (Isolation and Quarantine) Amendment Order (No 5) 2021

COVID-19 Public Health Response (COVID-19 Vaccination Certificate) Amendment Order 2021

COVID-19 Public Health Response (Maritime Border) Order (No 2) Amendment Order (No 3) 2021.

Once more we are asking the House to approve COVID-19 orders to ensure that they are not revoked within certain time frames. The House has considered a series of these motions over the past two years or so. The collection of orders before us today is perhaps the most significant so far. It demonstrates the necessity of a system that enables us to respond to the rapid pace of change that is characteristic of COVID-19 but that ensures that parliamentary debate and approval remains an essential part of the process. There are 10 orders in the motion before us today. The presentation of My Vaccine Passes has quickly become part of everyday life for the overwhelming majority of New Zealanders—to be shown to be able to enter certain areas, places, or premises, or to receive some services. The system was established by the COVID-19 Public Health Response (COVID-19 Vaccination Certificate) Order 2021 and its subsequent amendment, both of which are in today’s motion. They are a critical component of New Zealand’s world-leading COVID 19 response.

💬 Chris Bishop: Point of order, Madam Speaker. We’re in a slightly unusual situation here where we don’t have the actual Minister for COVID-19 Response, or indeed the Associate Minister, moving the motion and I think I’m right in saying that the Minister who is presumably acting on behalf of the Minister didn’t actually move the motion on behalf of the Minister for COVID-19 Response—

ASSISTANT SPEAKER (Hon Jenny Salesa): She did.

💬 Kieran McAnulty: She did. You’re too busy complaining to listen.

💬 Chris Bishop: Yes, well where are they? She’s here today, where is she?

ASSISTANT SPEAKER (Hon Jenny Salesa): The member will take his seat.

💬 Chris Bishop: Just because the Government whip can’t organise the House properly—

ASSISTANT SPEAKER (Hon Jenny Salesa): Order! The member will take his seat.

Speaking to the point of order, Madam Speaker, I just want to make the point that no member is allowed to point out the absence of another member and I feel that that was a deliberate attempt to do so.

ASSISTANT SPEAKER (Hon Jenny Salesa): That is fair to say. I would like to call the Hon Carmel Sepuloni to continue with the speech and may I suggest, Chris Bishop, that if you are to listen carefully, you would have actually heard that she moved the motion.

For the benefit of the members in the House—and I do hope that they are listening now—I thank the members of the Regulations Review Committee for their work in examining these orders. The committee’s comments on successive orders have contributed significantly to improving the process ever since the passing of the COVID-19 Public Health Response Act.

The question is—

💬 Chris Bishop: Oh, are we going to—sorry, Madam Speaker. I intended to take a full call here.

💬 Hon Carmel Sepuloni: He needs to sort himself out.

💬 Chris Bishop: Well, I’m just making the point that I’m intending to take a full call here. Do you want me to come back after the dinner break or start now, Madam Speaker?

You’re welcome to have a speech, Chris Bishop. It will only last a couple of minutes, though.

💬 Chris Bishop: I think we’ve changed the rules on that.

💬 Kieran McAnulty: I raise a point of order, Madam Speaker. I believe it’s within the presiding officer’s ability within five minutes of the dinner break to call it off, and I express no opposition to the member coming back and doing a speech in full after the dinner break.

ASSISTANT SPEAKER (Hon Jenny Salesa): We’ll resume the House after the dinner break, at 7 p.m.

Sitting suspended from 6 p.m. to 7 p.m.

The House has resumed. When the House broke for the dinner hour, the House was considering Government motion No 2. And I see Chris Bishop seeking the call.

Thank you, Madam Speaker, and I want to start by just apologising to the House for, I think it’d be fair to say, an unseemly little spat just before the dinner break, which involved a bit of a tête-à-tête between myself and the chief Government whip and also the Minister moving the motion, Minister Sepuloni.

I want to explain why I got a little bit perturbed by what the Government was doing, and that is that what the House is doing here is very important. We are approving far-ranging, significant orders under public health legislation that impose onerous duties on many New Zealanders. We only need to look at a couple of hundred metres from this House to see the level of upset that some people have with those duties, and it behoves the Parliament to take that job seriously. And unfortunately, we had a Minister moving the motion that has no relevant public health portfolio responsibility in the Parliament, nor was it the Minister for COVID-19 Response or indeed the Associate Minister or even the Minister of Health. I thought that was regrettable, because it’s very important that Parliament give these issues due consideration. And, frankly, the speech from the Minister was cursory at best. I think we got 90 seconds, or potentially two minutes, in relation to what the House was being asked to approve. That was why I was annoyed, and—I think I was annoyed, but I do want to apologise for the bit of a set-to with the chief Government whip.

I do just want to start by making that point, that what Parliament is doing here is very important because the motions that we are being asked to consider are the first motions made under amendments to the public health COVID Act last year, which relate to, obviously, the traffic light framework and the various duties that come with vaccination and COVID vaccine certificates or vaccine passes under that Act. So it’s very important. The Regulations Review Committee has done a very thorough job investigating that, and I want to echo the words of the Minister who moved the motion and say thank you to them for their hard work.

One of the things that we said last year, in relation to the passing under urgency of the COVID public health Act amendments, was that there were mistakes that would be made, that legislating in such haste would present problems down the line that the Government would have to fix. And, unfortunately, that has proven to be exactly the case. I would draw the House’s attention to the very thorough report of the Regulations Review Committee, which has examined the orders that the House is being asked to consider. There are four concerns that the committee had with the orders. I’ll just read them out, because I think it’s instructive as to the haste with which the Government both passed the Act and also promulgated the orders.

The committee says: “We have four concerns about this order … Unclear relationship between COVID-19 orders”. Secondly, “Consistency with the Act?” Well, that’s pretty big. Consistency with the Act—that goes through the whole legality of the orders that have been promulgated. Consistency with the Act is pretty fundamental, actually. It goes to whether or not an order is vires the empowering legislation. Thirdly—it gets worse—“Not in accordance with the objects and intentions of the empowering Act”. So in other words, the Minister—in this place, the Minister for Workplace Relations and Safety, who I see is in the House—has promulgated an order that is potentially not in accordance with the empowering Act. And, fourthly, “Drafting error with significant consequences”. A drafting era with significant consequences.

Now, some of these things have been fixed through the process of the back and forth between the Regulations Review Committee and the Minister, and that’s a good thing. That’s a very good thing. But I think it speaks to the urgency and the hurry that the Government moved on all of this last year. But the Regulations Review Committee has done a good job.

One of the interesting things about these orders is—and this speaks to the first point, which is the unclear relationship between the various orders. One of the points that some of us made during the debate on the empowering legislation or amendments last year was the high degree of confusion in relation to the various orders. Now, I accept that this is a technical and a complex area, but the Regulations Review Committee has echoed some of that criticism. So we’ve ended up with a situation where there are two different orders that do slightly different things but had the same purpose. And the committee notes, “We are concerned that having two orders with the same purpose is unclear and confusing.” One relates to public health rationale, and one relates to orders in the public interest.

The other point is that, as the committee notes, “the amendments made to the Act in 2021,”—these are the amendments in December—“to provide for the making of section 11AB orders, may not be sufficiently clear as to the intended interrelationship between the orders made under sections 11 and 11AB”. Now, the good news is the Regulations Review Committee is doing an inquiry into the regulation-making powers in the vaccinations legislation and the public health response order. And that’s a good thing, because there is definitely an issue here that requires ventilation, and definitely an issue that requires the House’s attention.

We will approve the orders made because, ultimately, the Government has made them and placed them before the House for the approval of the Parliament and we are satisfied that the committee has done a good job in tidying up some of the issues with them, as the committee always does. But I want to warn the Government that there is going to come a time when some of the various orders made pursuant to this legislation will have to expire. As I said to the House in December last year, the big issue in 2022 is going to be the temporal nature or otherwise of mandated professions, mandates generally, and the issue of vaccination passes. And that issue has only become more pressing as Omicron spreads throughout the community, and we can see the clear division in our society at the use of mandates and passes.

So I said in December, and I repeat again, that we are going to have to have a thorough conversation as a community and as a society about those issues. It is not good enough, I believe, for the Prime Minister to simply say, “Yep, they’re going to go at some point, but we won’t tell you when and we won’t tell you under what circumstances, and we won’t tell you how.” The House deserves more than that, and the House deserves a thorough and serious conversation around that. I said in December that that would be an issue this year; here we are in February, and it is definitely becoming an issue. And so we are going to have to have a look at that.

I note today that the Department of the Prime Minister and Cabinet (DPMC) told the Governance and Administration Committee that there is a review pursuant to Cabinet direction under way as to the traffic light framework and how it works in light of Omicron. We welcome that review, because the thing about Omicron—as we’ve discovered from overseas, but also we’re now experiencing here in New Zealand—is it’s highly infectious and busts through vaccination. And, actually, most of the cases, in the last two days, of people who have contracted Omicron—or, we assume it’s Omicron—are vaccinated. Are fully vaccinated. And they’re getting it in places where COVID vaccine passes are required—cafes and other places.

That does raise serious issues around the utility of passes. Passes under Delta made sense, because the transmission effects were so significant. When the transmission benefits are much more diminished because of the infectiousness of Omicron, the utility does diminish, and we deserve a conversation around under what circumstances passes and mandates will be required and, indeed, where they’re useful. I understand that the DPMC review that will be going to Cabinet will be looking at those issues. Those are not easy issues. The science and the evidence is emerging on that, and we can look overseas to some of that evidence and see what’s going to happen in New Zealand, because our trajectory is not that much different to other countries in terms of case numbers. And so we’ll look at that, and we welcome that review. That’s an issue that the House is going to have to grapple with in 2022. Thanks, Madam Speaker.

Thank you, Madam Speaker. I’ll keep my comments very brief, but I think I will echo what my National Party colleague has said in that there is a lot of law that comes through this Chamber that is done under the matter of urgency, and it leads to a lot of issues that we’ve seen through the Regulations Review Committee. In particular, if I look at one of these, this is the COVID-19 Public Health Response (COVID-19 Vaccination Certificate) Order. The committee said, “We’re concerned that the order gives an electronic system the power to make a decision without specifying who’s actually accountable for those decisions”. I mean, that’s a pretty big oversight, and it’s throughout a lot of these orders.

You can see another order that came through was the Public Health Response (Protection Framework) Order, and, in particular, the problems that the committee raised were ones that I was dealing with, with members of the public in the community who were in the middle of moving home. And this was a huge issue for a lot of people—it created a lot of stress. In particular, one person said that they had sold their home within Auckland and were moving south to Hamilton but, because of the restrictions through the protection framework, they weren’t legally allowed to move into their new home. But that created a huge challenge because they had settled on their home; somebody was expecting to come in and move into that home on the Thursday, and they had no legal right to leave Auckland. And then other people said, “Well, why don’t they move into a hotel or move with family?” Well, should the Government be putting restrictions in place on people that actually costs them money? Not everybody has thousands of dollars to move all of their stuff into a hotel, let alone all of their goods into storage facilities, when there could have just been an easier solution: letting people, who are in the process of relocating, through the border.

These are issues that we see when we rush legislation through, and it imposes huge costs on people. We need to make sure that we’re getting public policy right, and that we’re doing these laws correctly.

Another aspect that is increasing when we are passing these laws is clauses that are completely redundant. I see the committee also noted there were around 30 COVID-19 provisions in Part 2 of one of these orders that are currently redundant. What are they still there for? We are passing laws that are confusing for people to even read, because there are clauses in them that actually have no effect. People will be reading these orders, thinking that what they’re reading is in fact the law when, in fact, it’s not. How, at that point, can you trust what you are reading, that is passed by Parliament? We have a right and a duty to make sure that our laws—and what restrictions we’re putting on people—are simple and easy to follow. And I think it’s a real shame that people would mistakenly read our COVID orders, thinking they’re doing the right thing, but they’re so unsure that they actually are.

When it comes to the Public Health Response (Vaccinations) Amendment Order, I think we really do have to start having a conversation about whether we are going to see steps in the coming weeks and months that show when these orders are no longer needed, and when we can move on, and what the Prime Minister actually has in place for what we will move on to. The ACT Party has stressed, since last year, that we shouldn’t in fact have heavy-handed vaccine mandates; we should have a vaccine or test requirement. There is an alternative that the ACT Party has been putting out there for months, and we would encourage Parliament to pick it up, because we are seeing a lot of division, and we are seeing a lot of people starting to ask the question: “Well, when do we move on to something more?”. When do we actually allow people to have some of their rights and freedoms back, because we are limiting people’s rights and freedoms under the law, and there is a real need to show people a way forward—a way forward of hope and unity rather than division—and that’s what the ACT Party stands in favour of.

And so, Madam Speaker, the ACT Party is, quite frankly, getting sick of how many orders the Government puts through under urgency, and how shoddy that makes our legal regime. People have a right to know that the laws are written down in black and white, that they can trust what’s in front of them, that there’s been due diligence, that we’re getting it right, and that we also have a path out of limiting people’s right and freedoms. That’s why the ACT Party is standing opposing these orders today.

Aroha mai for before; I had a mask malfunction, so tēnā koe e te Māngai o te Whare.

I rise on behalf of the Green Party to support these COVID orders that were presented to the House between 30 November and 9 December, are already in effect, and, as my colleague here as mentioned, have already been superseded. It’s always interesting when we consider these motions, because we do them in blocks, because of how far we’ve moved since those things happened. Alert levels seem like a distant memory when Omicron is setting new records every day and we have a super-spreader event happening on our front lawn.

The Green Party acknowledges the efforts of those keeping us safe: from contact tracers and border workers to researchers and vaccinators. We have always supported a response to COVID-19 that is equitable and keeps people safe. We’re guided by our commitment to Te Tiriti o Waitangi, and we recognise the importance of Māori-led strategies for Māori. We also acknowledge the disproportionate effect of COVID-19 on Pasifika communities, especially in South Auckland. We support a Pacific-led response for their communities. Finally, we acknowledge the particular toll this pandemic has had on immunocompromised people and people with disabilities, who deserve the very best care we can give.

These orders include moving away from alert levels to the traffic light system. We were wary of this approach as we were staunch supporters of the elimination strategy, and we know our low rate of hospitalisations and deaths were absolutely because of it. But as the virus evolves, then so must we. We’re still not big fans of the traffic light system. It might have worked well as a transition from the elimination, but even the red light has proved to be no match at all for Omicron. We’re heavily relying on our vaccinations and boosters to see us through. That’s a worry for some of our communities because still, unfortunately, only three out of 20 DHBs have got over 90 percent of double vaccinations for Māori. So the high rates of boosters that we’re hoping to see are a very, very long way away.

The biggest risks remain in our communities for our children and for the many of us with underlying health conditions, so these orders also include the mandates that many New Zealanders have been concerned about. We recognise the inconsistencies for how these have been rolled out. There is huge confusion out there of what it means for marae, for businesses, for workplaces. You know, people think they’re following the rules and at the last minute something changes. People think, “Can I work here; can I not?” People are finding out a week later they can go back to their jobs. It’s really, really difficult. We fully support the science. We have always supported the health advice to vaccinate. We’ve maintained, though, that those who are unvaccinated for whatever reason should not be second-class citizens in this country. But that is what we’re seeing.

We support widespread access to rapid antigen tests so people can work and attend events with a negative test, and free masks. The investment in prevention is always going to be worth it. And coming back to the orders, perhaps the Government might like to develop one to deal with violent protests triggered by COVID mirroring protests that we’ve seen in other parts of the world, because yet again we see the double standards of the police response: a huge police presence at real occupations such as Pūtiki, where the protectors were dragged out and arrested, or at Ihumātao, where guardians were pulled from their beds, whereas here indecision reigns because the protesters wouldn’t leave when they were asked to.

The Greens are a party of activists and we support protests. We support people coming out and saying what they need to say. We believe in non-violent solutions. We do not want any violence happening out there. We want approaches that absolutely de-escalate any tension, but we’d still like to see a solution, and we haven’t got any clarity on what that might be, because we know that there are people out there with very legitimate concerns about mandates and what that actually means for them in their lives, in their whānau, and in their work. I think if we are able to have a conversation we could come to some sort of solution.

But as someone who has been a lifelong activist myself and been involved in many, many protests, there’s some tips I would like to offer. If someone wants to be heard, clarity of message is important. If they want to negotiate, leadership is important. If they want to be taken seriously, perhaps don’t associate with right-wing extremists, white supremacists, and people threatening to execute MPs. If they want to call for freedom, awesome; do that. Perhaps don’t trample on the freedom of someone else who wants to wear a mask; who wants to safely access their own workplace; who wants to catch public transport; who wants to safely walk to school without a security guard, which is what St Mary’s, just up the road, has now had to do because their kids are not safe walking around this block; or to present a petition. Save the Children were forced to go to the back of Parliament House, not have their democratic right to come to their House of Representatives and present a petition to MPs. Our co-leader, the Hon Marama Davidson, Jan Logie, and our colleague Harete Hipango from National went to receive that petition at the back of the House. They were still interrupted. They were still yelled at. So, absolutely, call for freedom, but no one else’s freedoms should be compromised.

It’s been all through this pandemic that we see this, this balance of freedoms. The freedom of health constricting our freedom of movement, requirements to wear masks—all of those things. We’re doing it in that bigger belief of our collective health and wellbeing, but people’s patience is so strained. We look forward to the day when COVID does not govern every aspect of our life, when it’s not in every conversation you can hear people talking about as you walk down the street. In the meantime, these orders are already there. I look forward to the time when we’re just doing our normal legislation and we don’t need to worry about urgency for how we deal with this pandemic. Kia ora.

I declare the House in committee for consideration of the Land Transport (Clean Vehicles) Amendment Bill, the Land Transport (Drug Driving) Amendment Bill, the Crown Pastoral Land Reform Bill, and the Commerce Amendment Bill.