covid-19 orders — Approval

In accordance with the determination of the Business Committee, I move, That this House approve the following orders made under the COVID-19 Public Health Response Act 2020: COVID-19 Public Health Response (Protection Framework) Amendment Order (No 2) 2021, COVID-19 Public Health Response (Required Testing and Vaccinations) Amendment Order (No 2) 2021, COVID-19 Public Health Response (Protection Framework) Amendment Order (No 3) 2021, COVID-19 Public Health Response (Air Border) Order 2021, COVID-19 Public Health Response (Isolation and Quarantine and Other Matters) Amendment Order 2021, COVID-19 Public Health Response (Air Border and Isolation and Quarantine) Amendment Order (No 2) 2021, COVID-19 Public Health Response (Air Border and Isolation and Quarantine) Amendment Order (No 2) Amendment Order 2021, COVID-19 Public Health Response (Air Border and Isolation and Quarantine) Amendment Order 2022, COVID-19 Public Health Response (Protection Framework) Amendment Order 2022, COVID-19 Public Health Response (Protection Framework) Amendment Order (No 2) 2022, COVID-19 Public Health Response (Vaccinations) Amendment Order 2022, and COVID-19 Public Health Response (Protection Framework) Amendment Order (No 3) 2022.

I’d like to begin by thanking the Business Committee for agreeing to debate the motion today. Here we are again, and I’m asking the House to approve a number of orders—12 orders—that have been made under the COVID-19 Public Health Response Act. As is the nature with these debates, some of those orders themselves are already out of date and have already been replaced by other orders, and some are about to be, based on the announcement that we made yesterday. But I would like to, as I always do in these debates, thank the Regulations Review Committee for their consideration of these various orders. I think the committee does a very thorough job on behalf of the House in scrutinising the use of the powers provided under the COVID-19 Public Health Response Act, and I’ll touch on a few of the themes of their comments in a few moments.

So the orders that we are confirming here were made between 10 December last year, 2021, and 23 January this year. The COVID-19 Public Health Response (Protection Framework) Amendment Order (No 2) 2021 was reported back from the Regulations Review Committee in its report on 10 February. The remaining 11 were featured in the committee’s report on 17 February. The 12 orders in question cover quite a wide range of issues, including the opening up of the Auckland boundary just before Christmas, the status of different parts of New Zealand in the traffic light system, and so on.

The COVID-19 Public Health Response (Air Border) Order 2021 and the COVID-19 Public Health Response (Isolation and Quarantine and Other Matters) Amendment Order 2021 set out the revised regime for travellers arriving into New Zealand that came into effect late on Monday this week and that was about to be replaced as of late tomorrow night. That, of course, was the one stepping through the removal of managed isolation and quarantine and imposing a self-solation system instead. That, of course, is now going to be replaced by another order that will also go through this process that, in due course, we will address and have to confirm here in the House.

Other amendments address technical drafting issues, and they seek to clarify details that have emerged as our response to COVID-19 has continued to develop. I would like to take a moment here to thank the Parliamentary Counsel Office, who work under great pressure to put these orders together, often having to do so in a very compressed time table, and often having to deal with what are quite technical issues—often quite a complex network and web of technical issues that they have to work their way through. Inevitably, from time to time, there are technical drafting amendments that need to be corrected, and we try and correct those in the next orders that are made.

The COVID-19 Public Health Response (Protection Framework) Amendment Order (No 2) 2021 dealt with a range of issues related to the crossing of the Auckland boundary. At the time of the transition from alert levels to the protection framework, the Regulations Review Committee expressed some concerns not about the orders themselves, or the provisions of the order, but about the accessibility of regulations. And they raised similar concerns about the difficulties of navigation through the order when they expressed concerns about the COVID-19 Public Health Response (Air Border) Order of 2021. The committee asked for clarity over the meaning and criteria that applied to country groups in this order and, again, an issue around the ease of understanding.

So the constant revision and updating that the rapid development of COVID-19 has necessitated has been a challenge in terms of keeping the secondary legislation as easy possible to navigate, and I want to acknowledge that, and I thank the Regulations Review Committee for drawing attention to those issues. I do agree that it’s important the regulations should be clear, they should be easily understandable, and the comments and feedback of the Regulations Review Committee will help us to continue to improve the design of orders in the future.

There are two orders that have been omitted from this motion, and I will cover them now because they have been subject of significant discussion over the last few days. The requests for vaccination mandates that originally came from the Police and the Defence Force were the subject of orders made under the COVID-19 Public Health Response Act. There are operational factors that drove the decision by those agencies to request the vaccination requirements: for example, Defence Force personnel need to be vaccinated in order to undertake overseas deployments, in many instances, including in places like the Pacific for disaster relief. So there are operational considerations there.

The decision of the courts to not uphold those two orders has only just been released, and we do need to take time to consider that. I do want to be clear that the judgment’s quite clear that it’s not questioning the role of mandates per se but whether they are required specifically for Police and for Defence in terms of business continuity purposes. So we need to take time to just carefully consider what the court’s ruling is—not have a knee-jerk response to that. So we will do that, and then we’ll make further decisions. We have been really clear, though, that where there is no longer a justification for a vaccination mandate to be in place, we would look to remove that in a timely manner. So, in some cases, in the case of the Police, very high rates of vaccination have now been achieved, and it may well be that there is no replacement for that mandate. But we’ll work through a careful process to look at that, and then we’ll make decisions in due course.

In terms of wider issues around vaccine mandates, as the Prime Minister and I have both been clear, we will seek to remove those at the appropriate time, and at the moment, as we head into what is already a very large outbreak and growing by the day, it isn’t the right moment to do that in many cases, but we will consider each of those mandates on a case by case basis. When the case has been made for them to be removed, then we would look to do that.

💬 Chris Bishop: Does that mean these four—the Police ones—they’re not approved?

The Defence Force one, the one that related to Defence, and the one that related to Police, which were the subject of the court decision last week, have not been included in the motion. The motion was revised and has removed those from that. They’re not being confirmed, so they will lapse. I didn’t want the Parliament to be in a position of, effectively, voting to confirm something that the courts have ruled against, so we’ve removed those from the motion, and we’ll now take some time to consider what the future of those, if any future, may be. With that, Mr Speaker, I congratulate you and commend this motion to the House.

The question is that the motion be agreed to.

Can I start where the Minister for COVID-19 Response ended, which is congratulating you, sir, on your ascension to this august role. It’s great to see you with a grin on your face, sir, chairing this session.

I thank the Minister for COVID-19 Response for the exchange we’ve just had and beg the House’s indulgence for an interjection, but it was a genuinely interesting question, which is what do we do as a Parliament with these orders that the court has essentially ruled as inconsistent with the New Zealand Bill of Rights Act and, essentially, ruled unlawful. We’ve just heard from the Minister that that has happened, but also he didn’t want to put the House into a position where we were confirming orders that the court has essentially ruled unlawful. I think that was the right decision, and so those orders now lapse, and it’ll be interesting to see what the Government does with those orders and with the issue of mandates for the Police and Defence Force generally.

I’ve read the Yardley judgment, Yardley v Minister for Workplace Relations and Safety, quite carefully, and some people have got a little bit carried away and said that it sort of means the end of vaccine mandates generally. That’s not quite my reading of the judgment. It’s actually quite a narrowly tailored judgment in relation to section 11AB of the COVID-19 Public Health Response Act that we passed an amendment to under urgency in the latter quarter of last year. I actually raised this in the debate—and if you check the Hansard you’ll find this. I raised this issue of the confusion between section 9 of the Act, which allows the Minister to make vaccination mandate orders in relation to public health, and the amendment that came in, which allows the Minister under section 11AB of the Act to make vaccination mandate orders when it’s in the public interest. That is actually what’s at the heart of the Yardley judgment and something that the Parliament is going to have to grapple with, because what happened in the Yardley case is that the Minister for Workplace Relations and Safety made a mandate order in relation to the Police and Defence, not on the grounds that it was justified on public health grounds but that it was justified on the grounds of maintaining public confidence in the Police and the Defence Force and, essentially, the continuity of service for those two particular forces.

What His Honour Justice Cooke found is that that argument or that ground that the Government put forward was not made out—that because you were dealing with such a small number of people in relation to vaccination who hadn’t been vaccinated, then there was no real impact on the continuity of service.

Interestingly, and this is where it is true to say, I believe, the judgment will have an impact on vaccination mandates more generally, is the judge’s comments made over the dicta in relation to transmissibility of COVID, particularly the Omicron variant and whether or not that has an impact on vaccination. The judge made two particular comments that I think are interesting and that I think we need to bear in mind as we have the debate around mandates. The first is the public health advice was that no further mandates were necessary. In other words, the Police and Defence Force mandate that the Government imposed was not necessary, and the existing mandates that were in place prior to the Police and Defence Force mandate made by the Minister for Workplace Relations were not necessary. That is interesting—that is interesting.

The second point is the judge made very careful comments obiter dicta in relation to the impact of Omicron on vaccination and how that applies in terms of limiting transmission. Because it’s very clear, I think, to most members of the House now that there’s been a sea change in our COVID response because of Omicron. Under Delta—

💬 David Seymour: The Government’s still working it out.

Well, I’m not sure if that’s actually true. I think they’re starting to get their head around it. Under Delta, it was very clear that vaccination made a big impact on transmission. Scientific evidence is very clear on that. Under Delta and the previous strains of COVID, vaccination made a big difference. It limited the transmission. So if you had 100 vaccinated people in a room, the chance that they would spread COVID amongst themselves was very, very small indeed; very low—not zero, but very low. Omicron has changed the game. It busts through vaccination, it busts through double vaccination, it busts through booster vaccination, and actually, the vast number of people, the vast bulk of people who are getting COVID—almost 20,000 today, 15,000 yesterday; you know, it was 3,000 last week or whatever it was—are vaccinated. They are fully vaccinated and indeed they are boosted. So that raises significant questions for the Parliament as to the utility of, firstly, vaccine mandates, and, secondly, the issue of vaccine passes.

I want to make it very clear for the House that we worry on this side of the House around whether or not there is any utility of vaccine mandates and vaccine passes any more. As the judge comments in the Yardley decision, it is worth bearing in mind that mandates impose on rights. I think, possibly in the last year or so, we have worked out that we’ve been too quick to impose on rights. It’s been interesting that the Attorney-General has not really ventilated and had a discussion, publicly at least, about the intrusion on rights that mandates have on individuals. There are two particular rights—and, again, these are covered in the Yardley judgment—that are intruded upon. One is the right to be free from medical treatment or the right to choose your own medical treatment, and the second is, of course, freedom of religion, which is touched upon as well. So it’s very clear—I think everyone would agree—that vaccine mandates intrude upon individual rights and freedoms. So the question is whether or not the intrusion on those rights is justified.

Now, our view in the National Party was that we would tolerate those intrusions on those rights for a temporary length of time—for a small length of time—while we were battling COVID because the science, at least six months ago, was very clear that vaccination made a big difference in terms of the spread of the virus, the spread of the illness, and of course, the wider impact that that spread has not just on individuals but more, actually, on the public health system and our wider society. It made a difference to limit the spread of COVID, and generally we’ve done a pretty good job of doing that in New Zealand.

So our view was they were justified as a temporary measure, but times have changed. Omicron has changed the game. The transmission benefits of vaccination are no longer anywhere near what they were, and because of that, the rights calculus—the careful balancing of whether or not something is a justified intrusion on a right—has therefore changed. And, actually, that is what His Honour Justice Cooke made comments about in the Yardley judgment. So that’s why it is right that the Minister is taking time to consider the impact of that judgment when it comes to vaccine mandates.

But we should not underestimate the impact that mandates are having on individuals out there. I’m not just talking about the group of protesters on the forecourt—they are at the hard edge of people who have been impacted by vaccine mandates—but right throughout the country, there have been people who have found themselves shut off from their local sports club, shut off from their local golf club—not allowed to even play a round of golf outside. I think worldwide there’s one case of transmission of COVID outside, but yet the local golf club has banned him from participating.

The thing that really gets me is young kids: 13-year-olds who can go to a physical education class and participate with unvaccinated 13-year-olds, but can’t go to a rugby practice after school—can’t go to rugby practice because it’s not involved in school sport. It’s a private school sport—

💬 Hon Scott Simpson: Or swimming club.

Or swimming club—as my friend and colleague the Hon Scott Simpson says, kids going to swimming lessons in outdoor pools. What is the risk of a 13-year-old contracting COVID outside? It’s not zero, but it may as well be zero. Of course, you’ve got to weigh that up against the impact of banning a 13- or 14-year-old from participating in sport, and keeping them active, fit, and healthy. All of those things have fallen by the wayside. So my view and National’s view is we’ve got the balance wrong and we do need to start to unwind the mandates. We do need to start to unwind the vaccine pass restrictions, that I haven’t had time to cover. The sooner they are gone, once we’re through the peak of the Omicron outbreak and then we can start getting back to normal life, the better.

Tēnā koe te Māngai o te Whare. I want to also congratulate you on your new role. I have not known you as long as many other people in this House, but I got to work with you while we were doing the Births, Deaths, Marriages and Relationships Registration Bill, as it was going through the Governance and Administration Committee, and I can say that many people in our communities who took part in that process were very impressed with the way that you handled that committee.

I rise on behalf of the Green Party to support these COVID orders. We note these orders were presented between 15 December—just before we finished work or before the House rose—and 1 February. Because these orders were during the summer holidays, we saw falling Delta numbers at the beginning, but then the community outbreak of Omicron started at the end. We note that the main issues are covered around international border rules, including the future move from Managed Isolation and Quarantine to self-isolation—the consequent pushing back of the time line to reflect the risk of Omicron and adjustments to the traffic light system. It feels like we’ve in red for such a very long time and we are very aware that red makes no difference to how Omicron is spreading.

Until now, we’ve been shielded from the skyrocketing numbers of COVID that we’ve seen around the world over the past two years, but no longer. Despite there being people in this country who think COVID-19 is not real, and therefore masks are not necessary, 100,143 active cases would beg to differ. The Ministry of Health has noted that about 60 percent of those cases have been under 30 years of age, 12 percent over the age of 50, and that the numbers are really concentrated in our 10- to 19-year-olds, and our 20- to 29-year-olds—25 percent each. However, we’re seeing the opposite pattern for those who end up in hospital, where only 20 percent are under the age of 30, but 54 percent are over the age of 50.

With more people self-isolating, we’re concerned that health and community workers, who are already stretched—who were stretched before COVID—will be able to identify people who need hospitalisation, including due to low oxygen levels, and provide timely hospital transfers. The Government—we need you to resource local Māori, Pasifika, and community health providers and organisations, to support those in self-isolation at home, to visit and ensure their health and wellbeing, and provide vaccinations and testing as required. Because, out of 20 DHBs, we still only have six who have reached 90 percent of Māori fully vaccinated. If boosters are the magic ingredient to stop people going into hospital, and dying, many Māori are still not eligible.

Also, only 51 percent of our 5 to 11 year olds are vaccinated with one dose: for Pasifika, 43 percent; for Māori only 31 percent. Hundreds of our schools now have active COVID cases and, with close contacts no longer needing to isolate, there’s a huge risk of infection to our vulnerable children and their whānau—especially the under-fives, who cannot be vaccinated. Test-To-Stay has been used overseas to manage infections in schools, as an alternative to isolating close contacts. We hope the Government will urgently introduce this at all schools across Aotearoa. Whānau are greatly concerned about sending their children to school; we must do everything we can to ensure our schools are safe at this time.

And, of course, at this stage in the pandemic, we know that some people can be infected with COVID and not show symptoms, but rapid antigen tests, or RATs, are only available for free to those with symptoms, if they are available at all. In Gisborne, there’s one pharmacy who sells them, and they’re sold out, and there is a queue of cars around the block—which is great; get tested—at the Salvation Army hall, but it’s really, really hard to get those tests. So we need to scale up provision of those RATs so that anyone can screen for COVID, to prevent asymptomatic transmission in high-risk locations, and to vulnerable people, because the vaccine pass can no longer guarantee that the holder is not infected. N95 masks, or equivalent, need to be free and easily accessible, and community health providers must have the resources to get masks to those who need them most.

Finally, I acknowledge the mana whenua of the land on which this House sits. Taranaki Whānui gathered yesterday at Pipitea Marae to lay down Te Kahu o Te Raukura, a cloak of peace in a form of cultural protection over their ancestral whenua, including all of Parliament, until the occupation is dispersed. They wanted to send a strong message to protestors—who have not honoured their role as manuhiri, as honoured guests—that now it is time to listen to mana whenua. Te Raukura contains the three feathers representing honour, peace and goodwill—the same symbol used at Parihaka.

This is an incredibly graceful and dignified response to what is happening outside this building, despite the fact that last week protestors broke into Pipitea Marae, in Thorndon, through the back door and served a trespass notice—as if they had any kind of authority to do such a thing—to the police and Māori wardens who were inside. I don’t think I’ve ever heard of such an outrageous breach of tikanga. Let us take their advice, though, that healing will not happen on the grounds of Parliament; that healing will happen when people go home, back to their communities and alongside their people. Yes, the Government should absolutely clarify when mandates are no longer needed—we all want to know this because we all want that to happen—and it appears that if the Government is not ready to ease those mandates, the High Court has indicated that it is ready to make that decision themselves. These orders have been put in place to keep us protected, and I commend them to the House. Kia ora.

I rise on behalf of ACT in opposition to these motions, and, just to make it clear, to summarise what’s going on here, the COVID-19 Public Health Response Act allows the Government to make orders that direct New Zealanders to do or not do things, to be or to not be at a place, and they’re able to do it just by signing a piece of paper. The catch is that Parliament has to debate them retrospectively. The ACT Party, at first, was actually prepared to support this basic idea because we thought the Government would stop making rules when they no longer made sense. We asked that there be more accountability into the system and the Government didn’t bring it, so that’s when we stopped supporting this—months ago. We voted against the last set of orders, I think in November. We voted against the COVID-Public Health Response Amendment Bill that made many of these orders possible; we voted against that last year. So we’ve been opposing this for some time because the problem is the rules no longer make sense. The benefits of these rules no longer exceed the costs.

It’s time to move on from a paradigm of fear, from a world where people are supposed to bear huge costs at the altar of the COVID god, even if it doesn’t make, practically, any difference. And we heard that in the parliamentary question time today. I asked the Prime Minister: if we let people come and be tourists and drive the New Zealand economy, if foreigners could come without isolation, how many extra COVID cases, how many extra hospital cases, would there be? The Prime Minister didn’t know. She said she knew how many there’d be if they had to isolate—a few hundred. How many if they didn’t have to isolate? She didn’t know. The fact is, there’s no reason not to open up the border. The restrictions on people coming into New Zealand that we still have do not have benefits that outweigh their costs.

It’s the same with so many of these rules. You know, we’re talking about rules here—for example, the requirement for groups of people to be vaccinated. Well, we heard a summary of the recent court case under Justice Cooke from my colleague Chris Bishop, and it was a pretty good summary. What the judge found is that the mandates are not required for the specific purpose of business continuity for Police and Defence. They have enough people. They could take the people who are in danger of COVID from not being vaccinated and sub them out. They wouldn’t actually stop the police or the Defence Force from continuing to do their work. So the mandates weren’t justified. They weren’t a justifiable limitation on people’s freedom to choose.

Then the judge said something else that’s very important. He said Omicron is changing the calculus of COVID. Omicron is different. It’s easier to spread; spreads more easily. It’s less virulent. It’s milder if you do get it. And it has what they call immune escape properties—different, vastly different from Delta. So vaccination’s effect on spread, and hospitalisation even, from Omicron is nothing like it was for Delta. And that changes the rules. It doesn’t matter if you pro-vax or anti-vax or pro-mandate or anti-mandate, you have to start from an agreed set of facts. And the facts are that Omicron is now the dominant strain. Almost 100 percent of cases are Omicron now, and the effects of vaccination on Omicron are much different than they were on Delta.

When the facts change, we have to change our response because this whole COVID response—if the epidemiology, if the biological facts are the foundation, the policy is the frame, the politics is the roof. And right now, Omicron is shaking down the whole edifice on which this Government’s COVID response has been built.

Let me give you an example of what some of these rules that are inflexible mean at a personal level, and this is a story of a constituent. When someone comes to see me as a constituent it’s a secret. I don’t talk about them. But this is from someone who said, “It’s time to use my voice.” I’m talking about the chaplain at a school called Dilworth, that’s had a lot of challenges. This school is going through all sorts of difficulties, not the fault of any of the people there now—all historical, but still very painful.

The chaplain is not an anti-vaxxer. In fact, he was vaccinated twice. But he had a response that was very bad from his second dose. He went to see his doctor, and his doctor said, “I recognise that. That actually is a legitimate recognised response to the Pfizer vaccine.” It was so horrible that it affected him for months. He didn’t want to get the booster, but because he doesn’t want to get the booster and because of the mandates on whole professions like education and because of the requirement to be boosted by today if he wants to keep working, he has to go home. At a time when that school most needs a chaplain, it can’t have one.

I have to ask, given the changing calculus of COVID with Omicron: is that worth it? Is that sane? Dare I ask the Prime Minister: is that kind? I don’t think so. It no longer stacks up. It no longer makes any sense. And there’s so many ways that we could have had a more humane response to vaccination requirements. In fact, there’s three things we could have done that would have helped him.

First of all, we should have said it’s vax or test. Sure, I understand under earlier variants people wanted to know the people around them were less likely to give them COVID. It’s self-protection. But really, if the person gets a test every 72 hours as ACT proposed in October, if you know that they are not carrying COVID because they have been tested, then do you really care if they’re vaccinated? Why would we indulge in a mania of going even further and saying that they have to be vaccinated if we’ve already secured our own protection by them having regular tests? So it should have been vax or test. That would have let this guy keep working.

Second of all, what we should have done is said, “Look, we’re able to have an organisation set its own rules.” Now, this particular school, any time—they’d be very happy to make an exception for this guy. But, actually, they can’t, you know, because it’s the whole education sector. And here’s the third thing we could have done to have a more humane response. If we had decided that we were going to let doctors have their own professional autonomy and give exemptions, his doctor would have given an exemption like that, but she’s not allowed to. And the way that doctors have had their rights to give exemptions taken away was really quite extraordinary. You know, imagine if lawyers had to ask the Minister of Justice before they gave certain advice. There would be an outrage. Lawyers would never stand for it, you know? Doctors have been told, “You can’t give certain advice to patients unless the Ministry of Health stands over you and says so.” It’s pretty extraordinary.

Now, if we’d made it vax or test, and we had organisations like schools make their own rules and exceptions, and let doctors operate with professional autonomy and make exemptions, I suspect we wouldn’t have the loss of social cohesion, and some of the angst that’s out there. We could have had a much more humane effect on vaccination with the same outcomes in terms of public health. And yet, here we are post hoc ratifying vaccine mandate rules. Well, ACT opposes them and we have since at least October now, and we’ve made positive suggestions that could have given us a more humane response. They’ve been there all along.

There are other suggestions here around the border, but I don’t think the Government is capable of making sane calculations around any policy to do with COVID. That’s why we say it’s time to move on. It’s time to ask—when it comes to isolation rules, for example—why does it make sense for somebody to isolate for 10 days when the Centers for Disease Control and Prevention says the incubation period is two to three days and your infectious period’s day four and five? The New Zealand Government says you got to keep isolating for another five days after you’re infectious. Why? Because they don’t care about the cost they put on New Zealanders. They don’t care about other aspects of your life or wellbeing. It’s COVID above all else. It’s sacrifice at the altar of the COVID gods and damn all the other costs that people face. Those isolation rules are completely wrong.

And then there’s the question of QR codes. Well, actually, you’re only a contact if you live with someone. So unless you’re scanning the QR code in your house, then it’s actually not going to—Mr Speaker, I assume you’re too sensible to have one. Unless you have a QR code in your house, then scanning QR codes doesn’t help with contact tracing. But you know what? Every business in this country is required by law to display one, and every customer that goes into those businesses has to scan. Does it make any difference to public health? No. Is it an imposition on New Zealanders? Yes. Does it show how much the Government cares about other aspects of New Zealanders’ welfare? Absolutely. “We’re making it do it because we can. It won’t make any difference. So what?” And then the likes of Michael Baker have the temerity to say, “Well, it doesn’t work now, but it might work at some time in the future, so you have to keep doing it.”

This is the lack of analysis of the costs and benefits of the Government’s COVID response, and it’s absolutely shameful. There’s the border, there’s the mandates, there’s the QR codes, there’s the isolation requirements. There’s the ban on rapid antigen tests. Those things all matter.

💬 Hon Andrew Little: And the low fatality rate.

And there’s Andrew Little barking away in the corner saying, “Oh, we have a low fatality rate.” We don’t have a low fatality rate because of anything that Minister’s done, I can assure you. He’s been incompetent from start to finish. How many tests can the Government do? Oh, 58,000? No, they forgot about rising rates and the inability to pool. Nothing that Minister’s been responsible for has made any difference. How many ICU beds do we have? He barks away, but he knows he’s screwed it up at every point. That’s why we need to move on. We need to get past rules that no longer make sense and take our freedom back. Thank you, Mr Speaker.

Tēnā koe e te Pīka. Tēnā tātou katoa. Te Paati Māori initially supported the Government’s health response in COVID but continued to not support the Government’s ongoing policies due to a host of reasons but, mainly, a lack of transparency with the testing regimes and the traffic light framework, and you know well our views on the way that you handled a mandate. Māori are the most regulated peoples that we know. Tikanga Māori and rāhui could have been done in this sense. Your mandates have been cruel and, quite frankly, are very confusing.

With currently the highest COVID reproduction rate in the world, it has never been more important that we prioritise looking after w’ānau and, indeed, our communities. We need to understand that phase 3 policies point to the failure of the Government to properly prepare for the Omicron outbreak, and heavily invest in healthcare and community services. Despite warnings, the Government has not invested in things like ICU, testing, and contact tracing capacity. We are supporting the call of Whānau Ora for an inquiry into the Ministry of Health’s handling of the roll-out of rapid antigen testing and, indeed, the whole testing regime, which has been an absolute shambles.

In February 2021, Director-General of Health, Ashley Bloomfield, said “Of all the different testing models, antigen testing seems to be the least reliable.”, and that he was not contemplating using rapid antigen tests (RATs) in Aotearoa. This statement was made while RATs were being deployed in the United Kingdom, throughout the United States and Canada, and some Australian states. Our Māori experts knew that RATs would be a useful screening tool as a first line of defence. Six months after—September 2021—still Bloomfield had denounced RATs, although with 100,000 RATs being purchased and later deployed at Middlemore to take the weight off overwhelmed services, indeed, in the middle of Delta. That same month, saliva testing was made available for Whānau Ora, in partnership with Rako Science. The cost of saliva tests is lower than nasal swabbing. In the middle of regional spread, Taranaki iwi also got into a similar partnership, as did Tupoho iwi in W’anganui.

Fast forward to a year later, 23 February 2022, we now have the call that RATs are no longer just a screening tool but, in fact, he has determined, against all good science, that they would now be deployed as a diagnostic tool across the whole of Aotearoa. We then learnt that a shipment of RATs had just arrived in Aotearoa, which would double the country’s capacity. Why were the RATs not ordered earlier? Why are they not readily available in communities like mine? All I have to say is, thank goodness for iwi, for Māori providers, who, at their own cost, took up saliva testing in areas that DHBs are not readily popping up and testing in.

Why did the Ministry of Health (MoH) not support progressively building our testing capacity, including through partnering with iwi and Whānau Ora, who, instead, have had to establish saliva testing capacities and capabilities at their own cost? How many iwi are subsidising the poor performing MoH by providing their own testing crew, which this MP has been part of? There are some, and these are questions that demand to be answered, indeed, in an independent inquiry. What has been clear, time and time again, ever since our first COVID case two years ago, is that we as tangata w’enua, cannot, and must not, rely on Government and the State to protect our w’akapapa and keep our people and our communities safe and well in home isolation. Manaaki packs, testing—where would this nation be without Māori hauora, Whānau Ora, and iwi providers?

At every stage during this response, our calls have been ignored, as have many Māori health experts. Resources have been delayed, power has been centralised rather than shared. In Te Paati Māori’s COVID policy release in November last year, we anticipated the risks of the Omicron wave and called on the Government to invest heavily in testing and contact tracing capacity, and we recommended a targeted Māori home isolation strategy. Crucially, we called for the establishment of an independent Māori pandemic response group with statutory powers to develop and lead the Māori COVID-19 health response. We never supported the traffic light system. It fails to protect tangata w’enua and vulnerable communities, and it didn’t receive support from our people, whether it was iwi leaders, Whānau Ora, or grassroots. Government should have increased testing capacity in the regions and issued home isolation packs, to all w’ānau, with essential supplies.

Now, at 20,000 cases today, we have the same leader, the same person within Ministry of Health, apologising—apologising for testing mishaps and delays. It’s not good enough. Too much of the response to this Omicron outbreak has been left to chance and to super-bureaucrats. Our people deserve better.

E te w’ānau, we saw us as Taranaki put down Te Kahu o Te Raukura. That’s our way of saying to you, “Enough is enough”. You have outstayed your welcome. The mana w’enua have asked you to return. I wear with me today our raukura of honour, peace, and goodwill. Your mamae has been heard. It is time now, whānau mā [family], hoki ki ō kāinga [go back to your people]. Go back to your people, where we will love and look after you. Go back and leave the mana w’enua to return the mauri to their w’enua.

On that note, e te w’ānau, it’s good to see you all well here, on this first virtual forum, and I hope that we listen to the people, inside and outside. It is time for us to work at unity and healing. E te w’ānau, you do not belong standing next to racists and white supremacists. Hoki ki ō kāinga. Kia ora. Tēnā koutou, tēnā tātou katoa.

[Go back to your homes. Thank you, greetings one and all.]

Thank you very much, Mr Speaker. May I begin by congratulating you on your elevation. Others have noted your popularity. I think I’m right in saying it’s universal among the House, so I think the only danger of anyone objecting to your elevation to your current role would be yourself.

💬 Hon Member: Ascension.

Ascension, no less.

I do want to take at least a brief call on these COVID orders. I mostly want to make some remarks as the chair of the Regulations Review Committee. If I do make any comments in my capacity as a National Party MP, I will make that distinction clear. As others have noted, something very interesting and, I think, actually really helpful has happened in the House today, and I think it’s a significant moment in our public law history in this country. I don’t wish to overstate it but as you can tell I’m rather excited, sir, at the interplay that we’ve seen before—a discussion between the shadow Leader of the House, Chris Bishop, and the Leader of the House, Chris Hipkins, in relation to the non-presentation or the non-inclusion of a couple of orders.

Let me take a step back, first of all, by noting that the Regulations Review Committee is known as a collegial committee. That’s how we operate internally, so to speak, but it also marks our interactions with other key players—for example, Ministers of the Crown or in a broader sense, hearing complaints with complainants, of course, but also relevant Government agencies, and so on. But I do also want to acknowledge an element of collegiality or comity—which is often the specific word used—in relation to the committee as a creature of Parliament and the comity or collegiality of Parliament with the other branches of Government. So in this case we’re acknowledging the fact today that Parliament has recognised that the court has made a judgment that is in a similar sphere to the substantive policy basis of a couple of COVID-19 orders, and Parliament has respected that the court had the right to make that determination on the facts in a case that was particular to the complainants, so to speak, before it, and the Government has respected that by removing the orders in relation to the Police and the New Zealand Defence Force members who had brought that motion. So I don’t really want to talk too much about the case specifically but I do want to commend the Government for recognising that appropriate separation between the powers of those respective branches of Government. So that’s, I think, an interesting development, and I think it’s very appropriate.

On a similar but slightly different note, we’ve seen that the orders that the Government first saw fit to promulgate—and the Regulations Review Committee agreed, albeit in a narrow way, considering, as they do, orders’ appropriateness—were appropriate at the time but are no longer appropriate according to the court. And it struck me as interesting that it would be possible to say quite rightly that an order is appropriate at one moment but later, when facts change—not the order itself; but when facts change, and in this case the transmissibility of COVID, being the Omicron variant as opposed to the Delta one—that actually changes the suitability of the order. In judicial review terms, that might speak to the reasonableness of the decision maker’s judgment—with a lower-case “j”, not to be confused with a court’s judgment—and in Regulations Review Committee terms, that’s, of course, going to the degree to which human rights are impacted or the extent to which the order might be said to be consistent with the objects and intentions of the Act, and so forth.

A number of orders have nevertheless been presented. I’ve spent a lot of time talking about those that weren’t, but I think it’s worthwhile to note that a number obviously have been presented. They were relatively uncontroversial, although the committee, in its usual diligent way, as excellently advised, provided some feedback to the Minister on various ways that we thought these could have been expressed more clearly. In a couple of cases, we’re yet to hear back from the Minister, which is reasonable, I think, given the time frames and the busyness in the real world of further orders that are being made along the way, in the way of a global pandemic. So, for that reason, we have an interim report. So that’s just explaining to anyone who’s following along and wondering why we might have only done an interim report, well, that’s the technical answer for that—that we need to hear back from the Minister, give him, and it is him, a chance to respond to concerns that we’d raised in the report.

I won’t dwell any further on those, and I’ll conclude a relatively short call by just noting as well the mandate orders that were not presented to the House. I’ve given kudos to the Government for not seeking to present them and putting Parliament in the position of having to seek to confirm that which the court had, in a sense, overturned.

But I do want to speak briefly with my different hat on—as a National Party MP—and at the time the order was put in place, as the National Party defence spokesperson. It seemed to me that it was inappropriate that the mandates should remain in place such that members of both those uniformed services should be told that they would not be welcome to remain in the service while there was litigation going on. I did write to the Minister of Defence at the time and made that suggestion. He declined to accept that suggestion, and I feel a sense of vindication that in fact if he had taken that advice, then we wouldn’t have the messiness that we do now with people having been let go from employment, from service, and now, as a result of a very recent court order, are, effectively, having that put on ice.

My other comment would be with a different hat on again—shadow Attorney-General. I did write to the Attorney-General some time ago, asking for the release of advice around the balance of rights considerations for a number of these different orders. He declined—in fact, he outright refused—to release publicly that legal advice, which I would’ve thought would be a helpful exercise for the sake of transparency, for the sake of ventilating, to use the phrase of my colleague and friend Chris Bishop, some of these issues which are now, unfortunately, the subject of uncertainty given the court judgment interacting and indeed contradicting the will of Parliament, or at least the Government, in the making of the orders.

So that concludes the remarks that I did want to make. I don’t know how much of it made sense to anyone but me, but I think other fans of public law and constitutional issues will think that today—

💬 Greg O’Connor: Just the usual.

Mr Greg O’Connor says it’s just as usual, I think, so I’m sorry that he didn’t enjoy it as much as I did. But, in any case, thank you, Mr Speaker, and before I get any other expressions of support, I’m going to stop there. But thank you for the opportunity to comment on these orders, and, again, congratulations to you in this role.

[Audio issue]

ASSISTANT SPEAKER (Ian McKelvie): Willow-Jean, can you please start again? We can’t hear you.

[Audio issue]

ASSISTANT SPEAKER (Ian McKelvie): We still can’t hear.

I move, That the question be now put.