COVID-19 Public Health Response (Extension of Act and Reduction of Powers) Amendment Bill

Members, the House is in committee on the COVID-19 Public Health Response (Extension of Act and Reduction of Powers) Amendment Bill. Members, we come now to Part 1.

Point of order. I seek leave for all provisions to be taken as one debate.

Leave is sought for that purpose. Is there any objection? There is objection. The question is that Part 1, as amended, stand part.

💬 Toni Severin: I’ve got questions, sorry.

I have started, but I’ll take the call from the member. Perhaps I will encourage the member to keep an eye on what’s happening, because we are moving quite rapidly.

Sorry, Mr Chair. I was just trying to find my page where the question is, around Part 1. I wasn’t listening, clearly. It’s just around the clause 3, about the sunset clause—which is great. But, I was just wondering, how did you come up with two years, and what evidence you’ve had to decide two years, or one year, or not to have it at all and say that we’re finished with it, because now that we’ve got antiviral drugs, people have been vaccinated, people have got natural immunity; we’ve got a huge mixture of things happening within our communities now, around COVID. So I was just wondering how we came to that sunset clause of two years.

Thank you very much to the member, and thanks for those comments about the availability of both, I guess, hybrid immunity—both from vaccination and exposure to the virus—and also antivirals. Plus, I think, the member, in an earlier speech, canvassed the many things that have improved, in terms of how people’s own behaviour has modified and how people have learnt more about how they can reduce the chance of them passing on all manner of infections. It’s in that context that we think that the greater powers in the original Act are no longer required, but that some management of COVID—through both isolation and measures like masks—may be required.

In terms of the two years—sorry, and just to conclude: that puts the provisions in this bill similar to more-normal infectious diseases legislation, as is in other pieces of infectious diseases legislation. With respect to the two-year time frame, it’s already been mentioned by the Government that we intend to have an overarching review and inquiry into the COVID-19 response, and we would anticipate that we’d have advice from such an inquiry on the shape of future legislation by then. So that was the basis for two years, but, in addition, it does acknowledge that things can change, as well, with the virus, as it has done over the last two years.

Thank you, Minister Verrall. Following on from the line of questioning that you’ve just responded to, one of the members in the backbenches of the Government mentioned earlier—in the first reading, I believe it was—that the Act had recently been before the Health Committee, and so the National Party is aware that, that being the case, there was discussion around extending the Act to 2023.

So why is it that, with the Health Committee having spent considerable time and resources considering the extension of the Act until 2023—where there was a report deliberated by the Health Committee—it is now to be superseded by this bill to extend the Act out to 2024?

I thank the member for her question. Those renewals of the Act are required under the current Act at a six-monthly interval. In fact, this bill removes the need for those renewals and just puts a two-year extension in place. So that issue of the need to discuss the renewal is addressed by this bill.

Thank you, Mr Chair. Yeah, I would like to begin by thanking the Health Committee, as well, for their report. It was very illuminating for myself—I’m not a doctor—and I wanted to acknowledge them, first off. Of course, they’re very ably chaired by Mr Tangi Utikere, a teacher—who better to wrangle a bunch of doctors than a teacher? So there’s that.

Minister Verrall, I wanted you to perhaps give me some reflections on proportionality. And I look through from clauses 8, 9, 10, pretty much right through to 23, where a whole bunch of things are going to fall out of the legislation, and I am interested to know about how you arrived there. I reflect on that in terms of the questions that were posed last week around public health advice saying that mask mandates should remain on public transport, and that not being feasible—probably because people don’t want to wear them. So can you give me some reflections about how you arrive at these particular decisions and how you arrive at what the public advice is telling you versus the limitations of rights. Following on from that, how can that apply to so many of these sections?

We did talk, earlier, about the warrantless search into marae—good, good to see that go. Hopefully everybody’s learnt and they will do things better and empower Māori and so on, and that’s a good thing. But I wonder how that relates to everything else and how you arrived at how this is appropriate in terms of the ways that you got to the proportionality of it, the public health response balanced against the limiting of rights, and within the context of the decision around not listening to public health advice around masks on public transport.

I thank the member for the question. If I understand it correctly, it’s a question about how decisions are made proportional to the public health threat. Firstly, just the Act requires that the impact on the New Zealand Bill of Rights Act is analysed and that the actions are consistent with it. So that requires that we, the Government, approach decisions made under the Act in a way of thinking if the restrictions on rights can be justified. That is always related to the public health threat posed by COVID, so it is a balance of those two factors.

If the member was asking an operational question, well, Crown Law and the Ministry of Health’s public health team give advice on those two factors. That feeds into a piece of advice that comes to Cabinet that reflects both of those components.

I think the member also had a question about decisions made about masks recently, where a decision made by Cabinet did not reflect entirely the public health advice. But, as I said, the role of Cabinet is to get those sources of advice of the Government from both public health and the New Zealand Bill of Rights Act perspective, and to make a decision on those. And I believe we covered that decision in the House a week ago.

Thank you, Mr Chair. This is just around replacement section 11(4), inserted by clause 8 of the bill. It’s just about persons arriving into New Zealand. I know this all comes down to your calling of when any order may “require a person, before they arrive in New Zealand, to satisfy any specified criteria in relation to 1 or more of the following matters” that are listed here. Well, my concern is, yes, we know that there are variants out there. We do know that travellers are going to bring them in. It’s also, as we say, summer. People are going to go on to overseas holidays and come back. It’s just, how is this going to be engaged, and how long is it going to be notified to let people know in advance that if you’re an overseas traveller coming into New Zealand, you may have to go through some of this process to be able to come here? Because, you know, this is another thing—this is going to stop, possibly, people at the border. This could stop people that are coming here to work for us with their visas. There’s a little bit of a criteria here and it’s a little bit of a concern when we we’re just starting to, hopefully, have people come into New Zealand to help the small businesses that have been struggling for the last two years that all of a sudden there may have to be a big stop. But how we are going to notify those overseas way in advance before they get on to that plane is a concern for me here. So if you could answer that question.

I’ll do a second question—it’s clause 13. I also noticed now that the Minister has the powers to make the COVID orders rather than the Director-General of Health, and how did that come about? I do know that those of us in the Regulations Review Committee will love not having to write so many letters to the director of health, but I’m just wanting to know how it now falls just into the Minister, rather than both. If you could answer those questions, it’d be much appreciated.

Thank you, Mr Chair. Firstly, just a reminder that the provisions in the bill relate to the scope of possible orders. So we do not have an order in place that makes particular requirements in relation to testing at the border any more. However, the important thing is that we do continue to have powers that enable proportionate responses at the border, because if something changes and we don’t have this in place, then we may only have quite blunt powers at the border—for example, to deny a ship entry, whereas, actually, a more proportionate way to proceed is to be able to manage the arrival of people. That is why the provision for such powers is available there.

With respect to the change to the Director-General of Health, that avenue has been used less in the latter stages of the pandemic and will continue—if new orders are to be made, that will be made through the process through the Minister and, of course, with the requirement that those orders are with all the safeguards, including that those orders are reviewed by the Regulations Review Committee and debated by Parliament.

Thank you, Mr Chair. I wonder if the Minister could give some further clarifications, in terms of the proportionality, in terms of how she arrived at the rights that were in section 11 that have now have been shrunken in terms of the powers that now exist within clause 8. I hear what you’re saying, and I agree we don’t want to unnecessarily limits people’s rights; that’s an important thing and that’s the balance that you have to make as the Minister, and I totally understand that. But could you walk me through—and for those watching at home—how you arrived at clause 8, in terms of the best way you would see of making sure that that balance is struck right, in terms of the proportionality of making sure that we have a good public health response without unnecessarily limiting people’s rights as well?

Thank you. So you’ll recall we developed earlier in the year a structured approach to assessing the risks of variants of concern. The Ministry of Health developed a number of scenarios of different ways the virus could evolve. It’s impossible to have a crystal ball about how COVID will evolve, but a range of scenarios were set up there. They were being considered in terms of what the responses would need to be, and it was deemed that the most likely scenarios did not require the extraordinary powers that were in the bill originally—that is, managed isolation and quarantine (MIQ) and the lockdowns.

If we look across the experience we’ve had this year, those powers have not been needed in this year. Obviously, MIQ wrapped up across the course of the year. Part of the reason for that is that Omicron appears to be a less clinically severe variant. Another reason for that is the widespread immunity that the population has through vaccination, but also some through exposure. So at a high level, that is the basis of that assessment that those powers were less likely to be needed and therefore the appropriate thing to do was to remove them. Of course, as I said, we don’t have a crystal ball. It is for Parliament to decide if they should be needed again; they could be brought back.

Thank you, Mr Chair. Minister Verrall, in answer to the question from the ACT member Toni Severin, it was stated—and please correct me if I’ve misinterpreted—that the orders made by the Minister will be reviewed by the Regulations Review Committee. Is that correct?

💬 Hon Dr Ayesha Verrall: Yes.

Thank you. So, accordingly, will the Government consider a post-enactment review of this legislation by referring it to the Regulations Review Committee or the Health Committee after it passes, to check if any details have been missed?

The Minister has confirmed that where orders are made by the Minister, there would be a review by the Regulations Review Committee in relation to those orders. My question is focused on a post-enactment review of this legislation. Would the Minister—or would this Government—refer to the Regulations Review Committee after it passes to ensure that nothing’s been missed?

Thank you, Mr Chair. I was wondering, in terms of the different options that were highlighted in the regulatory impact statement—and I know people will be interested at home because for those of us who got COVID earlier this year, after some of us got that, we ended up with the flu and then so on and so forth—option four was about implementing a disease-agnostic piece of legislation. I get it; we can’t do that right now. But I’m wondering if the Minister, the Hon Dr Ayesha Verrall, could offer some reflections on how the follow-through from this amendment will then fold into that one, potentially, if that’s what the Government is thinking.

💬 Hon Dr Ayesha Verrall: Could the member repeat the question?

Yeah. So I was reading the regulatory impact statement and it seems to me that this amendment bill is the option three, so continuing the powers in the Act and narrowing the powers. We talked a little bit earlier about proportionality and so on and so forth, but there was option (b), which was about implementing a disease-agnostic piece of legislation. So I was wondering—because I think it would be beneficial for people at home—if this is going to fold into another piece of legislation given that, for a lot of us, when people caught COVID, they caught a bunch of other things afterwards as well, so making sure that that’s being thought about, I think, would be useful for folks at home.

Yeah, I thank the members for their question. Look, I want to acknowledge that the Regulations Review Committee has done a great job with reviews of the orders and has made a positive impact on the response. We did not have a plan for a Health Committee review of the bill. I think the key point here is that there are a number of provisions in the Act, as noted: the review of orders by the Regulations Review Committee, as well as the requirement for the New Zealand Bill of Rights Act to be taken into account in all the orders, plus the need for the orders to be debated in Parliament.

With respect to the question about the proportionality, the question was about the other options and the disease-agnostic framework proposed in the regulatory impact statement. So I’m referring to page 21 of the regulatory impact statement where it sets out four options, and option four that’s discussed there is to implement disease-agnostic legislation, which is a technical way of saying legislation that’s suitable for a range of infectious disease threats. That certainly has a number of attractions; it could capture the lessons that we’ve learnt from COVID-19 in terms of the practicalities of how to respond to an infectious disease pandemic, as well as the learnings about the legal frameworks that have been used and so on. But the point is that that undertaking would take a very long time and does really need to be the subject of further deliberation. That’s the focus of an inquiry into COVID that we hope the Government will announce shortly. So it is not feasible to implement it prior to the expiration of the Act. So option four wasn’t feasible in the context of this bill.

Thank you, Mr Chair. Just a quick question—just a clarification, really, of the intent of part of clause 8, replacing section 11, which replaces the section with a narrower set of powers for the Minister to make COVID-19 orders. I’m just looking at one of the powers, and it’s to prohibit persons from importing, manufacturing, supplying, selling, packaging, or using a test or testing device or to authorise them to do so only in specified circumstances. I’m just wanting clarification on that, because the first time around, when COVID first came along, we had a huge problem with having tests available to the public, and we had a huge problem of people even applying to be able to supply those tests to the public and import them.

I’m wondering if this applies to just new products or new tests or if it applies to current tests, and they’re going to have to reapply if we have another outbreak and we’re going to have concerns about people lining up for hours and hours and hours trying to get hold of tests from a Government site.

Thanks, Mr Chairman. There is a testing order in place currently. Its purpose is not to restrict the import of tests; it is to be able to have a functioning regulatory framework for tests.

The issue that we face is that there is not really a good regulatory system of diagnostic tests used outside of laboratories in New Zealand. In laboratories, there is a system, because there is an accreditation process for labs. However, for point-of-care tests—which include the rapid antigen tests, loop-mediated isothermal application tests, and some of what’s called nucleic acid tests—so they’re like a PCR test that is more mobile and can be used outside a lab—there isn’t really a strong regulatory system for that.

The testing order that we currently have sets out a process whereby that can be done, and it, essentially, just enables evaluation of tests—like rapid antigen tests—to know that they are of a standard and sensitivity that they can be relied on by the public for making a diagnosis. We currently let rapid antigen tests with, I believe, a sensitivity of 80 percent. They’ll identify four out of five COVID cases. But there are certainly lower sensitivity ones on the international market, and we use the testing order in order to make sure that the ones that can come into the country are those good ones that reach that quality standard.