New Zealand Parliament Pāremata Aotearoa

Tuesday, 12 May 2020 (continued on Wednesday, 13 May 2020) - Volume 745

Sitting date: 12 May 2020

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  • TUESDAY, 12 MAY 2020

    (continued on Wednesday, 13 May 2020)


    In Committee

    Debate resumed.

    Part 1 Preliminary provisions (continued)

    CHAIRPERSON (Adrian Rurawhe): Tēnā rā tātou katoa i runga i te tuku iho o rātou mā ki te wāhi ngaro.

    [Greetings to all. I acknowledge those who have been sent below to the spirit realm.]

    Members, when the sitting was suspended last night, the committee was debating the question that Part 1 stand part. The Hon Michael Woodhouse had the call and he has three minutes 37 seconds remaining.

  • Hon MICHAEL WOODHOUSE (National): Mr Chairman, thank you, and I won't be needing all of those minutes and seconds.

    I raise two points and I just wanted to touch on the second one of them and seek clarification. It's actually a segue into the start of Part 2, which is the likelihood that this bill will be used if we need to go back into level 3 or level 4. I heard the Attorney-General say that that would be the case—turning to his officials and just seeking confirmation that that would be the case. Now, there are options for the Government to use the Civil Defence Emergency Management Act and section 70 of the Health Act, but the Attorney-General made it really clear that this is going to be the Act—once it's passed—that we would use to strengthen lockdown.

    So I think we need to be very clear. In my understanding—the Attorney-General can correct me if I'm wrong—this is now the vehicle for any form of lockdown for the next two years. Any form of constraints on freedom—this is what we're talking about. So, in terms of its purpose, it is much broader and raises the question, once again, of whether the other statutory powers that the Government had were sufficient to take us into the place that we have been in the last seven weeks.

  • Hon DAVID PARKER (Attorney-General): Thank you, Mr Chairman. Yes, that's correct. This bill, for the purposes of COVID-19 epidemics, is the governing legislation. Were there to be another epidemic that was not related to COVID, the underlying law would sit there—I think I've got that right. Officials are confirming that. But for COVID-19 we accept that where we need more nuanced frameworks that are potentially very intrusive, we think that should have, going forward, as we have come out of this emergency phase, a bespoke piece of legislation, and this is it. The protection that there is, that lies in that, I would suggest to the committee is greater than sits under the Health Act, for some of the reasons that have already been discussed.

    Hon Michael Woodhouse: We'll get on to that in Part 2, I think.

    Hon DAVID PARKER: Yes, in Part 2. While I'm on my feet I just want to raise an issue relating to Part 1, and that is the definition of "specified private premises", and explain how this has arisen and why we're proposing the solution that we have. Members will note that in the Supplementary Order Paper that we tabled last night, we inserted the words "specified private premises", on page 5, and we said that specified private premises means a dwellinghouse or marae.

    To make sense of that members have to look at clause 20 of the bill, which we'll come to, which said at the time of introduction, " subsection (1)"—this is the police powers of warrantless entry on any grounds to go into land, building, craft—"does not apply to a private dwellinghouse or marae." There has been a concern, that the Hon Alfred Ngaro mentioned yesterday, amongst Māoridom that this is somehow paternalistic because it treats Māori premises differently to other premises. The difficulty arises from the likes of the Te Puea Marae, where marae are used for more than one purpose. Te Puea Marae has had people living there. It's been very public with homeless people having been housed at Te Puea Marae. They also have education there. They also have other meetings, and they probably have counselling services and other commercial operations there, or semi-commerical operations, at different marae as well. It's a point that Willie Jackson has made.

    So the bill as introduced said, "Well, what do we do? We'll treat them like a dwellinghouse." So we said in section 20 that it should be dwellinghouse or marae. Now, the Māori Council and others have said that there's no reason why "marae" should be inserted in deference to a non-Māori gathering place, such as a hotel, conference, or birthday party. It could be seen as unfairly targeting Māori and the places they gather. It might also infer that there's a different standard being applied to Māoridom, and Māori don't want that imputation to be made, which was the Hon Alfred Ngaro's point.

    So we tried to address that by dragging it into the definitions section. It's actually something that doesn't take away protections; it actually adds them. But none the less, Māoridom don't want that; they want to be the same as non-Māoridom in respect of those premises. So what we're going to do in a Supplementary Order Paper that we've tabled is actually take out that underlined word on page 5, so that we're not creating a difference for Māoridom, and then take out the word "marae" from clause 20 of the bill. Then we're left with, as you'll see in the tracked changes version of clause 20, exactly the same for marae and other premises, but the obligation in terms of Māoridom, if they go into a marae exercising a warrantless power of going into the marae, they've got to give a notice to the committee of the marae.

  • DAVID SEYMOUR (Leader—ACT): Well, thank you very much, Mr Chair. Debating Part 1 of this bill, I'd like to first make some comments about clause 3, "Repeal of this Act". Originally, as introduced, the bill would've been carte blanche for two years, and it's very difficult to understand what the logic behind that was. It seems to be that the COVID crisis might continue for two years, and that's how long the Government might want to use the powers afforded it in the bill. I think that possibly reveals something about the thinking behind the bill that we should be very worried about, because it seems that rather than doing what might've made sense, to put in place this urgently made bill only for as long as it would take for Parliament to revisit and make a proper law, it was just a matter of seeking power for the State or the Government for the period that the Government thought it might want it. I think that is, first of all, a real mistake but, second of all, betrays that throughout this crisis we've had an approach by the Government that is more about having the power to fight a virus than balancing all of the rights, freedoms, and objectives of New Zealanders.

    As ACT, we put up amendments on Supplementary Order Paper 494 that would at least reduce the expiry date or the period of this bill back to one year from when it's passed. I think that would've been an improvement. I'm really pleased to see that there has been another amendment put up by the National Party, which I have to say is even better, which requires 90-day renewals of the bill by this House. So it could actually expire on any 90-day period until two years, when it definitely expires anyway. I see the Government's adopted those amendments in its amendments on Supplementary Order Paper 497, and I completely support those. So it's a good improvement, but it doesn't take away that suspicion that we got a look into the mind of the Government through its initial drafting.

    We then come to clause 4, which is the purpose, and for people who may be watching this on a Wednesday morning or may not have read the whole thing or had a chance to do that—it's all come at us very quickly—it's worth saying: "The purpose of this Act is to support a public health response to COVID-19 that—(a) prevents and limits the risk of the outbreak … (b) avoids, mitigates, or remedies the actual … potential adverse effects … (c) is co-ordinated, orderly, and proportionate; … (d) has enforceable measures". What's really interesting about that is that, once again, it appears to give some insight into the psychology of the Government as it faces this crisis. Yes, COVID-19 is something that we should want to be able to mitigate. Yes, it may be that if people overwhelmingly are being cooperative, there should be, out of fairness, enforcement powers for those one or two people at the fringe that do stupid things and risk becoming a super-spreader, for example, and letting everyone else down. That's all understandable.

    But what's interesting is that the purpose here is entirely about COVID; it's not about balancing the rights and freedoms of New Zealanders or securing New Zealand's overall welfare in the face of this crisis—and that seems to reflect the approach that the Government has taken throughout. What the Government could've said the purpose of this bill is is to balance the rights and freedoms of New Zealanders and their overall welfare, the ability to preserve their livelihood, with the Government's effort to fight the spread of COVID-19. The only concession we see to normal rights and freedoms in the purpose clause of this bill, that clause 4, is that it needs to be proportional. Well, I understand what that means, but it's a very weak concession to the fact that we have other objectives, not just fighting COVID-19. That is not everything. People have other things that are important and other rights and freedoms to be preserved. I hope to be able to continue that commentary with what it should've said in some detail in a future speech.

    What that purpose clause could've said is that the purpose of this Act is to ensure that the Government manages the COVID crisis in a balanced way that respects the rights, freedoms, and livelihoods of New Zealanders, as well as the necessity of fighting COVID-19. Some people might say, "Well, yes, but of course the Government has to do that, and any Government would of course balance things out." That's not the point. This legislation is passed by Parliament to direct and constrain the Government, and what we have is a piece of legislation that says the Government can do whatever it wants so long as it is pursuing the objective of opposing COVID-19. The only concession to any kind of fairness or justice is that word "proportional", and I'd put it to the Minister in the chair, David Parker, and to this committee that that is simply not good enough if we want to ensure a balanced approach.

    I think there's ample evidence in the way that this crisis has played out so far that we simply have not balanced all of the other objectives that New Zealanders have with the objective of fighting COVID-19. We can look at the total reluctance of the Government in earlier lockdown phases to consider, for example, the welfare of those butchers, bakers, and fresh fruit and veggie stores. The Government was quite happy to have people driving past those stores in their communities that were going broke so that they could mingle in a supermarket with 50 other people. We've had, as I mentioned in the first reading speech to this bill, couples where the wife was having a miscarriage left sobbing alone for hours in an empty room at a hospital. The partner, who should've been there supporting her, who wanted to be there supporting her, desperately, was pacing in the car park, unable, helpless, to do anything. Why? Because in the Government's response to this crisis, there simply has not been a commitment to balancing the other objectives that New Zealanders have with the objective of fighting COVID-19.

    We need an approach that says COVID is a problem, but it's not our only problem. We want to balance it with other problems that New Zealanders face, and the purpose clause, much as with the repeal clause of this bill, seems to give an insight into the psychology of the Government that drafted it: COVID is everything to them, control is everything to them, and that is not the way to get an optimal outcome for a better response to this crisis. So I'd put it to the Minister that when he drafted this section, he should've drafted it in a way that said the purpose is, yes, to establish controls over COVID-19, but also to ensure that when the Government acts under the authority of this bill and this Parliament, it has to have regard to those other needs that there are. It's only a purpose statement. You know, it only gives the underlying psychology of the legislation. There's no reason why it couldn't have said that.

    We then get on to the interpretation section, and in particular the most interesting part—normally, interpretation sections are not sections of great interest in legislation, I have to say, but the enforcement officer definition is very interesting, because, initially, it appeared that the Government wanted anybody to be brought up as an enforcement officer. It could've been a so-called community group operating a checkpoint or a roadblock—no one seems to know the difference anymore. It could've been just about any group of New Zealanders the director-general appointed to enforce these incredible powers against their fellow citizens. I'm pleased to see the Government has clarified, and in the Supplementary Order Paper 497 that the Government's tabled, it now has to be somebody from a Crown entity. Well, that is something of an improvement, a small improvement, but, again, the initial drafting appears to give an insight into the psychology and motivations of this Government and their approach to New Zealanders' basic rights and freedoms.

    I can't wait to continue this Part 1 discussion, but I've got to get on Newstalk and tell the people how it's going. Thank you, Mr Chair.

  • Hon KELVIN DAVIS (Minister for Māori Crown Relations: Te Arawhiti): Thank you, Mr Chair. I'd like to speak to Supplementary Order Paper (SOP) 497—and, in particular, the amendment to clause 5(1), which deletes the definition of "specified private premises", and it has an impact on clause 20.

    This goes to what the member Alfred Ngaro said in terms of marae being targeted, Māori feeling that because the word "marae" is in the bill that they're feeling targeted. Now, the intention was to give marae the greatest protection that we could. The confusion that is being caused is that people think that we are specifically targeting marae. So what we've done is listen to the concerns of Māoridom. We've heard from the Māori Council. We've spoken to a number of people in our Māori community. We've seen the reaction to marae being in here specifically, so what we're doing is removing that.

    But Māoridom has to be careful what they wish for—that's the problem—because what this now does is it reduces the protections that were being afforded to marae. I want to be clear that our intention was to give marae the best protection that we possibly could. We have heard the concerns. We have listened to Māori who think that marae are being particularly targeted. We've made the changes and listened to what Māoridom are saying.

    So, unfortunately, it reduces the protections that were to be afforded to marae. But that is what Māoridom has asked for and that's what the SOP does by deleting the definition of "specified private premises"—and in clause 20, we're removing reference to "marae" specifically. But, I think, to be honest, that it isn't really what should have been done; we should have maintained the protections for marae. But, because of the confusion, this is what we've done. Thank you, Mr Chair.

  • BRETT HUDSON (National): Thank you, Mr Chair. So we're here on Part 1 to discuss around the purpose. I've got some questions for the Minister David Parker. When this bill was introduced into the House earlier this sitting day, the Minister claimed, and this has been the case to public media as well, that the reason for this bill was to provide powers for enforcement of compliance under COVID-19 alert levels 1 and 2—2, in particular, given that that's where we hope to be heading in a matter of hours. And yet it has been determined in this debate, or, in this committee stage, confirmed by the Minister and officials, that the powers in this bill are not limited to levels 1 and 2 but do provide a vehicle for compliance edicts and enforcement on any return to levels 3 or 4 as well.

    So my question of the Minister is: why did he try to sell this bill to the public as being for levels 2 and possibly 1? Why, if it is about that, are the provisions not limited to COVID-19 alert levels 1 and 2? In the purpose statement, could it simply insert a clause in there to make that very clear, that this bill, and the provisions in this bill, and the particular conditions, the interpretations—that this bill applies to those specific alert levels?

    How does the Minister reconcile a need for this bill for levels 3 and 4—how does he reconcile that with his own public statement that there was no enforcement gap under alert levels 3 and 4 and those health notices issued? Because if there was no enforcement gap, there is no need to nuance provisions for any potential return to level 3. His statement to the public was that what exists under the existing framework, such as the Epidemic Preparedness Act, the Civil Defence Emergency Management Act, and the powers under that—that they're enough; that there was no gap. So why does this bill need to permit the provisions of this bill to apply to levels 3 or 4 when we've already got law to do that?

    Because on the face of it, it looks like they just find that current law a little bit annoying and instead they want to reshape some provisions so they don't get limited by what the limitations of that law are, and we may soon find out in court just what those limitations might be. But if they have that view, and the trifling annoyances of the law as it exists today isn't good enough for them, then they should say so. And they didn't. So why didn't they? What is the justification?

    Because most of these provisions are, in substance if not in exact wording, uplifted from those pieces of legislation anyway; for the elements that might nuance it, such as the Minister's reference to marae and enforcement officers, those elements could be incorporated into the current structure by way of amendment of those Acts. They don't need, inherently, a new Act, and they could have sunset clauses in those provisions in those amendment bills. So there is no fundamental, obvious need for this bill to apply to levels 3 and 4, particularly when the Government and that Minister said that this was all about going into level 2.

    That fundamentally is important. I mean, this is about constraining civil liberties. It was told to the public it's because there were nuances required for level 2 because, as we determined yesterday, it's difficult to perpetuate a state of emergency under the risk profile of level 2. So yep, OK, we can understand that there is some need to be able to set compliance conditions and to enforce those, but it is not at all clear that those elements need to be able to incorporate conditions for level 3 and level 4.

    So I'm particularly interested for the justification—one, the justification why this has to be level 3 and 4 encompassing as well, but also why weren't they honest with the public? Why weren't they upfront when they introduced this bill? Why were they not upfront and saying "Actually, this isn't about level 1 and 2; this is about our ability to control your movements, your associations, your actions for any condition under COVID. We're not happy with the constraints that exist on us as Government, so we want the freedom to be able to do whatever we want to do, when we want to do it, over the next two years."?

  • Hon DAVID PARKER (Attorney-General): If I could respond to Mr Hudson's points, the powers under this COVID bill are actually narrower than the powers under the Health Act. They're narrower, and I'll give you an example of that—I'll give the committee an example of that. At the moment, under the Health Act notices that have been promulgated under section 70 of the Health Act, they have triggered a warrantless power of entry for the police that they don't even have to report on. This bill says, going forward, even if we go back to level 3 or 4 in the future, the exercise of those powers has to be reported on in a more transparent way.

    In respect of the issue that the member says that I've misrepresented the bill about being needed in respect of level 2, it is needed in respect of level 2. The point I've been making in the media is to be countering what I think is quite a damaging assertion that has been made by some members of the Opposition, that we needed this bill because of a lack of powers under level 3 and level 4. We didn't—we didn't.

    Hon Member: Release your advice. Let's see the legal advice.

    Hon DAVID PARKER: He's saying "Release the legal advice." Well, we've actually won that particular skirmish, because it's now agreed that a select committee can't do what the House says it can't do, which is override legal professional privilege. But the idea that not releasing legal advice means that the legal advice says there's something bad in there is just wrong and unprincipled, and the member knows that, because he's legally experienced.

    In respect of the issue as to why it is that you would want to use this new regime in respect of future level 3 or level 4 events, if perchance we have to go there—and we all hope we don't have to go back there—it actually goes to the point that Mr Seymour made. The new framework actually creates more accountability, because it's a ministerial decision rather than the Director-General of Health.

    The further point that David Seymour made in relation to the definitions was saying that the purpose should be more than public health; it should be about economic factors. Well, actually, this is, effectively, a bespoke response to a health issue and, effectively, replaces the Health Act processes for COVID-19. I would say: in the future, the House will go back to those things more widely and actually propose more widely, in respect of the Health Act, a ministerial decision-making framework rather than a Director-General of Health decision-making framework, but that's for the future. But with respect to David Seymour, whose contributions in this debate I have thought have been very good, as have other members'—

    Hon Member: Because he's voting for the bill.

    Hon DAVID PARKER: I suspect he's not, actually. That was a very cynical interjection there from the other side. People can make valuable contributions, even if they're voting in an opposite way, to improve the bill before it's eventually passed. But he said that the purpose clause should include reference to economic factors. I agree that the decision that the Government takes as COVID goes forward—because it's a very unusual and long-lasting epidemic—needs to take into account economic factors in addition to health factors, and that is achieved in this bill by clause 9(b). It is achieved as David Seymour wanted economic factors to be taken into account in the decision that the Minister makes. That isn't achieved through the purpose clause, clause 4; it's the interrelationship between that clause 4 and clause 9(b) of the bill which makes that express point, but we come to that in Part 2.

  • BRETT HUDSON (National): Thank you, Mr Chair. Well, in response then to the Minister's comments—his comment first of all that this bill is a narrower set of powers—he gave the example of the requirement to report on a warrantless entry. Well, quite frankly, that's a good safeguard; that's actually a really good idea. But back to my earlier point: why not make that an amendment into the Health Act, or into the Civil Defence Emergency Management Act for that matter, too? And it could also be limited particularly to a health epidemic or, indeed, to COVID-19 and it could even have a sunset clause. But if it is important, and, actually, I think it is important, the Government would have been better-off making that amendment in the existing Acts; not creating an entirely new framework.

    So, another set of questions for the Minister, given he claims that this is a reduced set of powers. It's pretty simple: for New Zealanders, what lockdown meant is the Government could tell them what to do. The Government, effectively, told them to stay at home. It told them the conditions under which they could leave their homes, whether it was to access an essential service such as a supermarket, to go to the pharmacy, or to go and get some exercise—and the Government placed constraints on what that exercise could be, where it could be, how far they could travel by vehicle for the purpose of exercise. The Government determined what businesses could open, not even, actually, under a framework of principle-base but, actually, the Government decided individually which business could open and which business could not. The Government was able, effectively, to lock down the country in level 3 and 4 that we've experienced, and the provisions in this bill enable them to do the same things. There is the ability under this bill, if it is enacted, to place the same level of constraints on people's freedom of movement, their freedom of association—the Government can lock them up in their homes under the provisions of this bill, should it choose to.

    What is more, it's actually worse—the powers are greater—because, while the Government may have to give regard to advice from the Director-General of Health, it does not have to follow it, whereas—and I'm going to slightly impinge into Part 2, just by reference—under the existing legislation, it is the Director-General of Health that makes those decisions, not the Government. So, actually, they're giving themselves more power and taking the power away—or lessening the power—of the apolitical and unelected officials who New Zealanders can have the trust in to make decisions without a political tinge. Rather than, as the Minister has said, making it more accountable, this simply makes it more political.

    But to that point which the Minister made about these somehow being more constrained powers, they simply are not—not to the everyday effect of New Zealanders that they have felt for the last six or seven weeks. The Government, if this bill is enacted, can do all of the things it did to New Zealanders over that period under this bill, and it allows them to do it outside of the existing legal frameworks, which do provide limitations on the power of Government and, what is more, require the decisions to be made without a political tinge. So I find it quite astounding that the Minister, who must know these things, would seek to make such a claim in this House. This is a truly serious matter. This is not about limiting Government response; this is about empowering any politically founded response that they may choose to do so.

    Also, because, of course, these provisions, or these powers, can be unlocked at the whim of a Prime Minister who just decides that they will move into a state which allows these, further protections for New Zealanders from political meddling are actually removed, because she or he could choose to do so counter to advice from officials, including the Director-General of Health. This is not a bill that is securing the civil liberties of New Zealanders; it is completely undermining them in a way that lessens the safeguards and constraints that the existing framework places.

    I do agree with the Minister that there are gaps in the current frameworks for what we see as level 2 and possibly even level 1, but I don't believe he has justified why an entirely new framework and law is required.

  • Hon GERRY BROWNLEE (National—Ilam): That's a very good point made by my colleague, because we're being asked to pass this legislation because there is going to be no pandemic notice, there is going to be no state of civil emergency. So that raises the question: what is the basis for the fear that the Government has to the extent that they need to pass legislation that is going to seriously continue impinging on the civil liberties of New Zealanders? I don't want to be here saying that we shouldn't take any precautions, or that we shouldn't be sensible, or that we shouldn't watch the opportunities that we have to prevent the spread of this particular disease. But it appears that there is no trust that New Zealanders in the main can be sensible, because let's be very clear, the New Zealanders who broke the rules during 4 and 3 will continue to break the rules under 2, regardless of any law that might be there. So why do we then need to impose such incredible restrictions on New Zealanders?

    My colleague made the right point. Mr Hudson made it clear that it's the Prime Minister under this bill who calls all the shots. Why isn't there some kind of protection for the public in there needing to be some stream of demonstrable advice about why a particular measure is being taken? I'd like the Minister to address that, particularly the issue of no pandemic notice, no state of civil emergency. But somehow something driving a degree of fear in the Government that New Zealanders would not act sensibly, having so willingly, voluntarily—because it would appear there wasn't any legal compulsion—interrupted their lives so dramatically as they have in the last seven weeks to get on top of this thing.

  • Hon DAVID PARKER (Attorney-General): I'm happy to respond to some of those matters. Can I suggest that the Opposition can't have it both ways. Well, they shouldn't have it both ways. They can try, but they shouldn't. They can't say, on the one hand, economic matters need to be taken into account going forward because this is an unusual thing and we need to open up the economy and we can't just do this only on health grounds, which is, essentially, what the director-general's orders do now under the Health Act. To get past that, you need this legislation, which enables the Government because it's now the Minister that takes those decisions, and the Minister can now expressly take into account economic factors as well as having to take into account the director-general's public health advice. That's the effect of this new legislation, which is different from the other.

    The other additional protections here are that, for the orders that are now made under this legislation, there has to be a confirmation process under this House. There's no such confirmation process under the existing Health Act. So that's an additional protection that is there for New Zealanders, that we bring these things back to the House for every order—an additional protection that we've agreed through this process. Similar ideas were brought by both ACT and the National Party, which we agreed with. We thought these were improvements to the legislation, that rather than this having a two-year sunset we should have to come back every 90 days generally for confirmation that this bill, in respect of COVID itself, is carried forward.

    As to the point of Mr Brownlee's that we should trust everyone—actually, you know, New Zealanders, the 99 percent New Zealanders who do the right thing, don't want their efforts to be put at risk by the 1 percent who refuse to and deliberately flout rules. And we saw that on the way in at level 3 in New Zealand. We saw it in my hometown of Dunedin, where people deliberately—student parties started up on private property that were really deliberately flouting it. Now, that might have been ignorance as we went in, but we have seen that sort of irresponsible conduct on the part of a very, very small minority of New Zealanders. The law does need to be able to say that's not right and to enforce the rules that are necessary to stop the spread of COVID.

    The final point I will make is that I actually agree that this is a very unusual disease. At the moment it appears that it's not changing and morphing so fast that it will for ever stay ahead of a vaccine, because if this virus turns into something that mutates all the time, there is a view that you will never get to a vaccine. Currently, it looks like it's not mutating that fast. And therefore, if we manage to maintain low levels of infection in New Zealand, we should be able to do that, we hope, until a vaccine comes along. If the virus started to mutate regularly and, therefore, there was no prospect of a vaccine, eventually society has to deal with it in a different way. And perhaps at that time it would be appropriate to say, "Look, there's no hope of keeping this out for ever. The interim powers of allowing police officers to go in without a warrant to stop a big party at a private residence should be revisited because there's no sense in doing it, because we can't do this for ever." But we're not at that point yet.

    We have so successfully as a country got this under control that we have a good chance that New Zealand is not going to suffer the appalling consequences that we've see in Italy, in Great Britain, in the United States, where thousands of people are dying and people who have got other health problems that are serious can't get treatment because their hospital systems are overrun by COVID. We have stopped that in New Zealand and we've got the chance of—now, I'm going to finally, before I take my seat, refer to the point that David Seymour raised of that terribly sad case of a woman suffering a miscarriage and her partner not being able to join her in hospital. Why did the health authorities do that? Because they wanted to halve the rate of risk that they were, through that admission, admitting COVID to their hospital. We've got hospitals around the world—around the world, you see it in India, you see it in Great Britain—where we have got infection rife.

  • Hon GERRY BROWNLEE (National—Ilam): With all due respect to the very emotional—unusually emotional—speech from the Hon David Parker, it was really a bit like pointing at a tree and saying, "Look at that; there's a squirrel running up there." Well, over here there's a really serious issue. That serious issue is that there is no basis under the law at the moment for the director-general to declare a pandemic. There's no basis under law at the moment for there to be a state of civil emergency to be declared. So if, in fact, the efforts of New Zealanders—which have been pretty splendid, I've got to say—have got us to this point, what's the fear factor that says that we now can't trust New Zealanders to do the right things moving forward?

    Let's be very clear. Those people that you cite, Minister—in the flat parties in Dunedin and various other things—are going to continue doing that sort of thing anyway. They're nutters; they don't listen and they don't care. So to say, "Well, we've got to protect the population against the worst health effects that may come from that irresponsible behaviour." tends to deny the fact that it is irresponsible to see so many New Zealanders day after day—1,000 a day, and probably more. It won't be long before the daily toll of people going on to the jobseeker benefit, losing their jobs, unemployed, matches the entire number of people who've been infected by COVID virus over the last seven weeks.

    So all we're saying is this goes too far. It puts far too much power in the hands of one person: the Prime Minister. There are no—there are no—controls in this or suggestions in this or, you would say, references in this as to what advice the Prime Minister should take. Now, everyone knows Prime Ministers take advice. Everyone knows, also, Prime Ministers can make decisions that their whole caucus will go along with. But to legislate in here for that particular power, I think, is somewhat over the top.

  • DAVID SEYMOUR (Leader—ACT): I take a short call in response to a couple of comments from the Attorney-General, David Parker. I apologise, I missed part of his comment, but what I got from him was that it was not necessary to set out in any explicit terms the need to balance the other concerns New Zealanders have such as their rights and freedoms—

    Hon David Parker: That's not what I said.

    DAVID SEYMOUR: —and their welfare in the purpose. He's now saying to me that's not what he said, but he seemed to be saying that because clause 9(b)—and that's in Part 2 and we're not currently debating Part 2—but because clause 9(b) has a reference where it says the Minister must have regard to any decision by the Government on the level of public health measures appropriate to respond to the risks or remedy the effects and then in brackets, "(which decision may have taken into account any social, economic, or other factors)". So I take the Minister's point that the bill does include the concern for other factors: people's rights and freedoms; their right to protect their livelihood, do their business, and so on. However, I just make the point that when pushed to refer to that, the Attorney-General has referred us to something in clause 9(b) that's actually in brackets and I don't think that is an adequate prominence for the fact that the Government needs to be balancing a range of competing objectives when it puts in place these orders. I just come back—I don't think those are particularly helpful, but it's worth mentioning since the Attorney-General's picked it up.

    The logic of separating couples going into hospital for childbirth is that actually they had their bubble divided. If anything, they were put at greater risk. The idea that an intimate couple who are having a baby wouldn't have already infected each other if one or the other had it does not seem logical to me. It's more likely that they're going to infect each other if one of them is forced to go outside and pace around the carpark and take a different route through the hospital from the other. And, of course, that the illogic of those orders compounds when you consider that actually in most cases, such as Dr David Cumin, who happens to be a personal friend of mine and a lecturer at the University of Auckland, a fine proponent of civil liberties in this country—well, he was also separated from his partner in the course of childbirth. But the crazy thing is he went into the hospital, then he came out, so the bubble was together then divided. The hospital actually increased the chance of spreading COVID, including into the hospital. I don't think there's a lot of point debating this, because it's not entirely relevant to the bill, but it does speak to the need to consider very carefully the impacts of this legislation, not only on COVID-19 but on the other rights and freedoms that people cherish in this country.

    We also come on to the later sections and I don't think there's a huge amount that needs to be said about that, other than this question around specified private premises. Now, I can understand the obvious sensitivity of differentiating marae from the rest of the private dwellings that New Zealanders have. We don't like the idea that there are two legal regimes—that one race are singled out—obviously, and I think it's important that the Government is trying to address that issue. But so far as I can see, and perhaps the Attorney-General can tell us, specified private premises still names a dwelling a private dwellinghouse or marae, so I don't know what the objective is anymore. Are we trying to say that marae and Māori are different or the same when we distinguish marae from private dwellinghouses in the interpretation?

    So lots to debate—and I think it shows, having this debate, how important it is that New Zealand's laws are actually debated in a Parliament. And for that, I really thank the Attorney-General for bringing this bill to the House and now to committee. Thank you, Mr Chair.

  • Hon DAVID PARKER (Attorney-General): The issues that come up in Part 2, I'll leave for Part 2. The issue in respect of the definition of "a private dwelling" in this Part 1, what I said earlier, and I'm not sure whether the member had the opportunity to hear it, was that proposed addition to the definitions of "specified private premises means a private dwellinghouse or marae" is coming out. We're reverting, then, to the original wording in the bill in clause 20, but when we get to that we are taking out the words "or marae" so that we don't have that distinction.

  • Hon ALFRED NGARO (National): I just stand to take a call on this Part 1. We heard in this House, the Prime Minister declare the reasons for the speed of this process. It was not only because of the pandemic but that in order to mitigate that speed of the process, we had the opportunity to have an exposure draft sent out to those of concern, those who would make a contribution.

    In regards to this bill, I want to ask a number of questions to the Attorney-General. In particular, he's made comments in regards to marae being taken out. But I want to ask him the first question: when did he receive the advice that was given from the exposure draft given to Māori? I've got a list of a number of Māori academics and those who are quite prominent in Māoridom but also in the judicial system, both in academic and in practice, who gave some advice. I'd like to know from the Minister: when did he receive that advice? And when he did receive that advice, how did he accommodate for the advice that was given by Māoridom, in this particular instance, to the issues of concern that were raised?

    The Minister has stood in the House—and I acknowledge the fact of the changes that have been made through the Supplementary Order Paper (SOP). I acknowledge the fact that the Hon Kelvin Davis had explained the reason for this, that there had been others. The Attorney-General talked about Willie Jackson. There were others in the Māori Council who talked about this. And then he gave a definition, an interpretation, as the reasons it was taken out. But I want to remind the Minister, because I'm sure that he has read the advice that was given to him, which was given quite early on, by the way, to those—earlier than we received it. We received it around about half past 5 on a Monday afternoon. So this consultation process I think should be challenged.

    But here's some of the advice that was given by those to the Attorney-General, I'm sure, and to the Government. Their first statement was this: "There is neither a general Treaty clause nor any obligation to have regard to the Treaty or its principles at any point of decision making or performance of functions under the Act." That's exactly the point. While I acknowledge the changes that have been made through the SOP, the point is that when you have a reference point, you can then determine the decisions so that you don't make the mistakes to try and change them or to try and define whether you need further consultation with others around. Why? Because you're guided by the determination of the principles that are here.

    Can I remind us in the committee, not just the Attorney-General, that the Treaty of Waitangi is based on the principle of a word called kawenata. Not just partnership, kawenata is about a covenant, and here's what it clearly states and here's the reasons why I think that's important: because a covenant, in the meaning of kawenata, is a covenant, a testament, a charter, a contract. It's an undertaking that binds parties to a permanent moral and irrevocable relationship. That's the reasons why we have it, and at the heart of a bill that's coming before this House. Again, we don't challenge the what—we know what needs to happen—we're challenging the why. What I'm challenging here today is this: that at the heart of this relationship which is a foundation of this nation, of two peoples that are reflected in the covenant relationship, why was it not taken into account? You can change the deck chairs, you can change the SOPs to accommodate, to make it look like it appeases people, but at the heart of it you've forgotten the principles that are critically important.

    I say this to the committee. I say this to the history and the heritage of this place, because we're all accountable. But I'm now saying to you that is in charge, to you that is in a position where you are in charge of this bill, that if you cannot uphold a covenant relationship between Māoridom—and I say this to you and to the nation of New Zealand—then you're not upholding a relationship of trust with the people of New Zealand, because that's what it goes to the heart of. If you cannot understand the key principles of what that means—sorry, Mr Chair; I didn't want to bring you into the debate, but to the Government of the day: if you cannot take into account the advice that was given in the exposure draft that the Prime Minister stood in this House and said was critically important because of the speed of the process, we wanted to acknowledge and to engage, and yet they have been forgotten like the funeral directors, like those in the churches, like those in other places around the country.

    The nation is waking up to see that under this Government, it's not the what that people are arguing; it's the how you are going about it. You are giving extraordinary powers. You're going to the point where the goodwill that has been given by this nation to the governance of this country to lead us to a place of safety and wellbeing is now being trashed and taken away.

    I want to just finish off my comments there, but I want to say to the Minister that the question is: when did he receive those comments? How did he accommodate the views that were stated—and there were a number of them—in this report that I have before me? How did he accommodate them, or was it just a casual conversation? You mentioned about Willie Jackson—can I also say that when you use the definition and your interpretation of "marae", that they had dual roles not only as places of cultural significance but also as social services, well, I'd like to say the same thing too. That goes the same for churches. The number of churches that are now having a dual role of not only places of worship but also places of serving their community through the outreach of social services is right up and down this country, so they are no different at the same time too. So I don't buy the excuse or the reasons that were given that those maraes have a dual role.

    I'd like the Minister to answer those questions. I'd like him to take in consideration that was given to him in the exposure draft that was submitted and, again, to answer the question: why is it that those views and those comments were not taken into consideration and all we're doing now is just trying to tidy up? It's just like we got the rubber; we're going to rub it out. We're going to change it, put it in an SOP, Part 2, make it look like it accommodates and appeases the people. This is not just for Māoridom; this is for all New Zealanders, who are starting to wake up that their civil liberties and their civil rights—the goodwill is about to run out, and when it does you'll see a backlash of people starting to say enough is enough.

  • The question was put that the following amendment in the name of the Hon David Parker to the proposed amendments set out on Supplementary Order Paper 497 in his name to clause 5 be agreed to:

    delete the definition of specified private premises.

    A party vote was called for on the question, That the amendment be agreed to.

    Ayes 64

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8; ACT New Zealand 1.

    Noes 56

    New Zealand National 55; Ross.

    Amendment to the amendments agreed to.

  • CHAIRPERSON (Adrian Rurawhe): The question is that the Minister's amendments to Part 1 set out on Supplementary Order Paper 497 be agreed to. All those in favour say Aye, to the contrary No—

    Hon Gerry Brownlee: I raise a point of order, Mr Chairperson. I know it's unusual for me to even seek this when you have started the vote, but this is a very important bill, and I think it would be useful, rather than just hearing the numbers, if on this particular occasion we could hear what the amendments are, because some of them quite clearly will make the bill better, and regardless of our view on the bill, then we would want to support those bits of the bill that make it better. I know that's unusual, so can I seek leave for that to happen?

    CHAIRPERSON (Adrian Rurawhe): Can I just take some advice on that.

    Hon Gerry Brownlee: Yeah, yeah, most certainly, sir—sorry.

    Hon David Parker: Could I speak to the point of order? This is an unusual situation. I understand what the shadow Leader of the House is seeking, and I think that the intention of the Opposition was to support the bill coming back every 90 days to Parliament, or the powers coming back every 90 days. My understanding of the vote that has just been taken is that, actually, the National Party voted the reverse on Supplementary Order Paper 497, so I would seek leave that the vote be put again.

    Hon Gerry Brownlee: Well, in any event, there is a facility available. The Clerk might want to advise you, sir, but my understanding is that a vote can be corrected, and in that case, then I would take this opportunity to ask, before you declare the final result, that our vote for that particular provision is in favour.

    CHAIRPERSON (Adrian Rurawhe): The vote that has taken place is on the definition of "specified private premises". So the National Party voted No. If the member is telling—

    Hon Gerry Brownlee: But that was on the premises stuff?

    Hon David Parker: I raise a point of order, Mr Chairperson. For clarity, the point that Alfred Ngaro raised, which was in respect of marae, is in the first Supplementary Order Paper (SOP), and if the National Party wanted all premises to be treated the same, including marae, they would vote in favour of that SOP.

    Hon Gerry Brownlee: And that's the correction of the vote.

    CHAIRPERSON (Adrian Rurawhe): OK. Well, I think we've had the leave sought that we have that vote again, and I'm inclined to put that leave and expect that we'll take that vote again. So leave has been sought that the vote on amending the Minister's Supplementary Order Paper (SOP) 497—an amendment to clause 5—be retaken. There's no objection, so that will be the case.

    The question was put that the following amendment in the name of the Hon David Parker to the proposed amendments set out on Supplementary Order Paper 497 in his name to clause 5 be agreed to:

    delete the definition of specified private premises.

    Amendment to the amendments agreed to.

    The question was put that the amendments set out on Supplementary Order Paper 497 in the name of the Hon David Parker to Part 1 be agreed to.

    Amendments agreed to.

    CHAIRPERSON (Adrian Rurawhe): David Seymour's amendment to clause 3 set out on Supplementary Order Paper (SOP) 494 is out of order as being inconsistent with a previous decision of the committee. The Hon Simon Bridges' amendments to clause 3 set out on SOP 499 are out of order as being inconsistent with a previous decision of the committee.

  • A party vote was called for on the question, That Part 1 as amended be agreed to.

    Ayes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Noes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Part 1 as amended agreed to.

  • Part 2 Provisions to limit the risk of outbreak or spread of COVID-19

    Hon DAVID PARKER (Attorney-General): This is the part that has the powers that can be specified in a clause 11 order, which is the equivalent of the old section 70 orders under the Health Act. I make the point that all of the powers that are listed there have broader equivalence under the Health Act. So why this is, we think, desirable is that this makes it clear that you can have narrower versions of those powers—for example, rather than closing premises, it's made express that premises can be conditionally open so that rather than them being closed, they are open albeit with rules relating to maximum numbers and social distancing.

  • Hon Dr NICK SMITH (National—Nelson): Thank you, Mr Chairman. This is the first opportunity that I have had to speak in this House since the COVID-19 emergency, and it is with a great deal of unease, specifically on the provisions that are in this COVID-19 Public Health Response Bill, Part 2. My unease is that, at the time when the Government is calling for unity and for anybody that questions provisions of its programme is somehow being disloyal to the cause of this country confronting the challenges of COVID-19, we have the Government exercising extraordinary powers over people's lives, and we have quite arbitrary decisions being made on the exercise of freedoms that I never thought would ever be questioned in this Parliament. My nervousness is this: only two weeks ago, this Parliament under urgency passed legislation very different to what the Minister told the House it was doing. We passed a massive finance bill, spending billions of dollars, that was completely different to what the Minister said. And that is why it is proper that this Parliament scrutinises this legislation.

    The bit that I am at loss, and my community in Nelson is at loss, is in respect of the provisions in Part 2 of this bill as they relate to gatherings of people. Nobody in this Parliament would question the emotion of funerals and the way in which people are able to farewell loved ones. I have a letter, which I'll table, from my local funeral association that says, "How do we explain to Nelsonians and to New Zealanders that you can have 100 people in a bar, you can have 100 people in a restaurant, but you can't have more than 10 people under level 2 at a funeral? You can have 50 people on a school bus, but you can't have more than 10 at a funeral." When I hear the Prime Minister say to New Zealanders, "Oh, you've got to be united. It's unfair to question these arbitrary rulings." I say to the Minister, actually, in a democracy, it is absolutely proper that we can ask questions of regulations and proposals that lack common sense, that lack compassion, and which do not respect basic things like religious freedom. I'd love the Minister to explain this for me. In a bar—myself and others, I enjoy a good beer at my local. Actually, I see far more capacity to be able to do contact tracing and to be able to manage social distancing at a place of worship as compared with a bar. So can the members in the Government please explain for me why my churches in Nelson will not, under level 2, be able to practise worship with the proper controls, but those same groups will be able to hop down to the local bar with 100 people and have an ale? I'm sorry; it does not make common sense. It's insulting to the intelligence of New Zealanders, and, actually, it's insulting to one of the most basic freedoms in this dear country of ours, and that is the issue of religious freedom.

    Here's my further point for the Minister: what this bill says is the Opposition is right—that under level 1 and level 2, the Government was acting unlawfully.

    Hon Andrew Little: No, it doesn't.

    Hon Dr NICK SMITH: We should have seen legislation of this sort four weeks ago, Mr Little. My question for Mr Little, the Minister of Justice, is this: six weeks ago, the Government announced a framework—

    Hon Andrew Little: How would you believe him?

    Hon Dr NICK SMITH: I raise a point of order, Madam Chairperson. I've put up with continuous interjection from the Minister of Justice, Mr Andrew Little. I'd invite him to take a call on such a serious issue rather than the continuous practice of interjection when we're talking about issues as important as the rights of New Zealanders, an issue of which he has responsibility for.

    CHAIRPERSON (Hon Anne Tolley): I don't need any help, but that's not actually a point of order, and this is a wide-ranging debate and interjection—I will decide when it's unreasonable. The member may continue.

    Hon Dr NICK SMITH: So transparency and openness is absolutely critical to our country being united in dealing with the issues of COVID-19. My question for the Minister of Justice is this: the Government announced, six weeks ago, the level 1, 2, 3, 4 process for dealing with COVID-19; why is Parliament only being given 24 hours to debate the law that provides the extraordinary powers that the Government announced six weeks ago? What sort of respect does it show Parliament and New Zealand's democracy that the Government develops a level system—1, 2, 3, 4—and turns up with the legislation one day before it comes into effect? Is that really good lawmaking, Mr Parker? Why is it that Parliament has not been able to have a look at this sort of law rather than, effectively, being given 24 hours? What is it in the culture and the arrogance of this Government that it can have six weeks with its officials around such issues of what people will be able to do and not do under level 2, but Parliament is to be given less than a day to approve such far-reaching law changes?

    Now, I do challenge the Minister that if you want to keep New Zealand united, if you want to keep our response as a country to this challenge, then you also need to meet the transparency test. I say, what good reason does the Government have for not releasing the Crown Law opinion on the application of level 4 controls?

    CHAIRPERSON (Hon Anne Tolley): That's a good question to ask, but it's not actually in this part.

    Hon Dr NICK SMITH: Well, it's absolutely relevant to the issues in Part 2.

    CHAIRPERSON (Hon Anne Tolley): Well, yeah, but we are actually debating Part 2, so I'd ask you—

    Hon Dr NICK SMITH: Well, it's relevant to the issues of Part 2, because I put this to you, Madam Chair—

    CHAIRPERSON (Hon Anne Tolley): Are you arguing with me?

    Hon Dr NICK SMITH: No, I'm not arguing. I'm saying that the issue of the Crown Law advice on the legality of level 4 controls—

    CHAIRPERSON (Hon Anne Tolley): Related to which part?

    Hon Dr NICK SMITH:—is absolutely relevant to the issues in Part 2 of this bill, because it's attempting to codify the very things that the Government has done under levels 3 and 4. So my question for the Minister is this: why, if it was perfectly legal to exercise controls that were far more powerful, far more restrictive, under level 4, do we need to legislate in Part 2 of this bill for the controls under level 2? Because, in effect, what the Government is saying is: "Oops, we overstretched on level 4. The legislation to enforce what we did under level 4 should've been provided then, but now, as sort of a backfill measure, with a lower level of restrictions, we now recognise that we have to legislate." Again, I say, if you want the sort of goodwill for New Zealanders to back a collective effort, 5 million New Zealanders, then what we ask of the Government is openness and transparency, and we have not seen that.

    The last point I would want to make in respect to Part 2 of this bill is why exclude the largest party in Parliament, the party which received the most votes and has the greatest democratic mandate from the last election, from any say in the extraordinary regulations that you're asking for in clause 11 of this Part 2? Why should the over a million New Zealanders that voted for the 55 members of the National Party not have any role or say in the regulations? We've moved an amendment that says that the Prime Minister should consult with the Leader of the Opposition if they are going to proceed with the powers, because what this bill does is transfer extraordinary powers from the Parliament to the executiveto the Government of the day. The Government of the day represents three parties—the Labour, the New Zealand First, and the Green Party—but excludes any involvement of the party that actually holds the majority of the constituency seats and secured the most votes at the last election.

    So, again, I say to the Government that if you want unity, if you want New Zealand to hold it together and to be able to deal with the challenges of COVID-19, then the quid pro quo is that you respect democracy, respect this Parliament, and have, at the very least, a requirement for the Prime Minister to consult with the Leader of the Opposition about the sorts of regulations that would be passed to put these extraordinary limits on where people can worship, whether they can leave their home, whether they can open their business—whether they can do those such things.

  • Hon DAVID PARKER (Attorney-General): Responding to some of the points that the Hon Dr Smith has made—or is it Dr the Hon Smith? According to the Lockwood Smith precedent—

    CHAIRPERSON (Hon Anne Tolley): It's the "Honourable Doctor".

    Hon DAVID PARKER: The Hon Dr Smith. This legislation sets up the framework; it doesn't make the orders. Therefore, this framework has to contemplate future orders, including, we say, in respect of what we should do in the future, should we have to go back to level 3 or 4 in a more nuanced way than we actually did as we went through those levels today. Therefore, it is not this legislation that sets what the size of a gathering should be, what the difference should be in a funeral, or a wedding, or a tangi, or a private party; that is for the orders that are made under it.

    They are very proper questions for the Opposition to ask, and it is proper for the Opposition to question those, but that isn't what this legislation is doing; this is legislation that sets up the framework that has to cover various exigencies that may arise in the future. In respect of the assertion that is made by Dr Smith that this somehow means that the powers that were exercised under the earlier orders—that's not logically connected and that's not correct. In respect of the issue—

    Hon Dr Nick Smith: Well, release the opinion—release it.

    Hon DAVID PARKER: Well, there we go again. We have the Opposition having quite improperly attacked the basis of legal professional privilege, saying the reason that we're asserting our legal professional privilege is because we've got something to hide in respect of those enforcement powers. It just shows you how populist and desperate they have become that they link those two arguments, because they actually know—I would suggest to the public—that they're wrong in principle. In respect of the issue as to whether the Leader of the Opposition should be included in these things, I would suggest to you that it is the executive that is held to account for governmental action, and that is the traditional form of accountability that we are restoring through this bill, meaning that it is the Minister that has to take into account, under Part 2, the advice from the director-general, can take into account economic factors as a consequence.

    We offered the Leader of the Opposition a confidential briefing on the legal advice that they so desperately wanted to see, but he didn't want to see it on that confidential basis. We're quite happy with the ability of the Government to take these decisions wisely and to be held to account by the Opposition, including in respect of orders that are made under this legislation. Indeed, we think that is the appropriate way for our parliamentary democracy to operate, including the ability of the Opposition to hold us to account through discussions in this Parliament at question time, through the 90-day review of this legislation, whether it's been appropriately dealt with by the Government. But we don't think it's appropriate that the Leader of the Opposition have the role that is sought by the Opposition in their Supplementary Order Paper, and so we'll be voting against that particular Supplementary Order Paper.

  • Hon GERRY BROWNLEE (National—Ilam): Well, there we have it from the Minister. This part is totally the "Henry VIII" provision—no consultation required by the Prime Minister, just wake up in the morning, bit of a whim, and we'll shut a few things down. Now, that might be a massive oversimplification, but it is the reality of the power that's contained in this particular provision. If it is—well, I see one member over there laughing, but I know what that member's electoral fortunes are going to be in a few months' time, as a result of that sort of laughter.

    Let me be very clear—let me be very clear. This bill confers an enormous amount of power on one person, effectively the Prime Minister. Everybody else is a step down from that, and everybody else loops back to the Prime Minister. Now, Prime Ministers do eventually have to make calls; no one is going to dispute that. But there is normally a process that's much more defined than we've got in this case. There's no need for the Prime Minister to consult with anybody. But what would be so hard with actually saying, "The circumstances in the country, from a health perspective, are so dire, we now need to introduce even more stringent measures." Because that's really what this is about.

    Yes, it does make legal what this level 2 arrangement is about, but it will circle back on level 3 or level 4 if that's required. So what is so hard in that circumstance to consult with the Leader of the Opposition? What is so hard about that? Doesn't mean the Prime Minister has to do what the Leader of the Opposition tells her or him, whoever it might be; it simply means that the Opposition is informed.

    Now, there could be some reasonable discussion about what eventually goes into the section 11 notices that are part of this part. Section 11 notices can be incredibly Draconian. We're seeing what has happened to small businesses. You know, people driving past the butcher, the baker, and various other small businesses to go to the supermarket, apparently to stay safe, but by congregating in a place where everybody is touching everything, and, bluntly, the ability for people to maintain social distance was difficult. But that can happen again: preference, effectively, for one delivery service over another.

    If there is a view—and it's just stated here—that there could be the spread of the virus or there could be an exacerbation to the pandemic level, then in that event, why not consult with the other side of the House? No one's going to do or recommend anything that said that's crazy or anti or not going to be in the best interests of New Zealanders. But I do think this is far too restrictive in its conference of power, effectively, to make these decisions on one person. So I'd like to ask the Minister to just run through again what he thinks the process would be when the Prime Minister reaches a conclusion that there is a risk of an outbreak or the spread of COVID-19 and has decided to authorise the use of section 11 notices. Because it looks light—it looks light.

    The interesting thing is that one of the things that can be done is that once the Prime Minister makes that decision by Gazette notice, it's the Minister of Health who steps in to do these things, and that Minister may have regard to any decision by the Government on how to respond. In other words, it is proof positive, written in the law, it all goes back to the Prime Minister. I think that's dangerous in a free country.

    We have a Westminster democracy. It does work; it means we have to go through processes. Everyone doesn't get what they want. But a Government that's duly installed is able to pass laws as long as they can keep their own people onside or their coalitions onside. That's how it works. But they do have to go through a process, except in this case. To say, "Well, look, we've now agreed that there's a three-month review." Well, that's good; it's great there's a three-month review. All that will do is notify the public about why things are continuing, in a formal sense. No one should be under any illusion that there will be some kind of free vote in the House.

  • Hon DAVID PARKER (Attorney-General): I want to respond to the question, or the assertion, of the Hon Gerry Brownlee—and I wrote it down. He said, "Nobody's going to do what is not in the interests of New Zealand.", as to why we should consult with the Leader of the Opposition.

    I'm going to put on record what's just been happening in the last week. The Leader of the Opposition, having been offered a confidential brief of legal—

    Hon Gerry Brownlee: You tried to gag him.

    Hon Member: Gagging order.

    Hon Member: It's called legal privilege.

    CHAIRPERSON (Hon Anne Tolley): Order! Order! Order! All of you.

    Hon DAVID PARKER: Thank you, Madam Speaker—The Leader of the Opposition, having been offered a confidential look at the legal advice he seemed so desperate to see, said he didn't want to receive it because he wanted to make it public. He is a lawyer. He knows that legal professional privilege does not exist on that basis.

    Hon Dr Nick Smith: It can be waivered at any time.

    Hon DAVID PARKER: Yes, it can be waived, but it's not for the Opposition to waive it; it is for the Attorney-General to waive it. It is an over 100-year-old precedent of this Parliament, entrenched in the legislation of this House, that it is not even for Parliament to waive that privilege. The Leader of the Opposition then purported to issue a summons to require that privilege to be waived, and said that he would override it.

    It is for the Government to make these decisions, and we will. We will be held to account for the decisions that we will make, but they are governmental decisions. We are introducing further scrutiny through the provisions in this bill, but we are not going to devolve those decision-making responsibilities to the Opposition.

  • CHAIRPERSON (Hon Anne Tolley): I will call the Hon Gerry Brownlee, but I just make the point that, actually, this bill in front of us here does not contain anything about releasing documents, whether they're legally privileged—so let's make sure that we are focused on the clauses in the bill.

    Hon Gerry Brownlee: Look, the clock hasn't gone back to zero, so I'll take a point of order.

    CHAIRPERSON (Hon Anne Tolley): That's because I haven't done it.

    Hon Gerry Brownlee: My point of order is that—

    CHAIRPERSON (Hon Anne Tolley): Oh, it's a point of order?

    Hon Gerry Brownlee: Yes.

    CHAIRPERSON (Hon Anne Tolley): Oh, I beg your pardon.

    Hon Gerry Brownlee: No, no, hang on, oh, was that—oh, yeah, that's right. My—

    CHAIRPERSON (Hon Anne Tolley): The Minister was on his feet, yeah.

    Hon Gerry Brownlee: Yeah, my point is—

    CHAIRPERSON (Hon Anne Tolley): You're taking a point of order.

    Hon Gerry Brownlee: Yes, just to make it clear with you, so I don't stray into the wrong sort of territory, that the issue is about the consultation with the Leader of the Opposition. The Minister has said the reason for them not wanting to put it in the bill—

    CHAIRPERSON (Hon Anne Tolley): I understand that.

    Hon Gerry Brownlee: —relates to the release of documents. It's impossible not to mention the release of documents in some rebuttal of his position. So, with that, can I make my start?

    Hon David Parker: Speaking to the point of order.

    CHAIRPERSON (Hon Anne Tolley): Well, I'm not actually quite sure what the point of order is, because this is a debatable point. All I did was make sure that we were directing the conversation in this committee towards the provisions in the bill. So I don't really think there's a point of order, and I'm happy to continue with the discussion.

  • Hon GERRY BROWNLEE (National—Ilam): So there the Minister goes again, pointing at another tree to show us another squirrel: "Look at that; it's running up over there. Forget about what's over here." All we have said is, when these provisions are being enacted, why can't there be a consultation with the Leader of the Opposition? It affects all New Zealanders—all New Zealanders. So it's only reasonable that the Leader of the Opposition should be consulted when the Prime Minister makes one of these unilateral decisions.

    To bring in this silly argument that because the Leader of the Opposition dared to say that the public of New Zealand should know the lawful basis on which the Government acted is somehow a complete contravention of all things democratic is totally wrong. It is the fundamental point in a democracy that a Government acts lawfully, and if they were they would release the documents, but they're not. They know they've pushed it right to the edge. They know it's been a marginal call, and they probably know that if they release those documents, anybody who's been slung into court who should have been because they were breaching the rights of other New Zealanders will probably walk free.

    The Minister sits there and laughs. Well, what's he hiding? Because he's hiding something. And for him to say that "Because I've chosen to hide something and the Leader of the Opposition has had the audacity to challenge my right to do that, we don't want him consulted over things that would be of huge importance to all New Zealanders." Any track back to the sort of situation we've had over the last seven weeks is even more disastrous than what New Zealanders are going to have to put up with for years to come as a result of that. But, apparently, no, the Government of the day knows so much that they don't need to at least consult on such Draconian methods. That, I think, is very, very sad, and I think is a disappointment for a Government that touts itself as being so open, so transparent, and so in touch with the needs of New Zealanders. Well, I tell you what, there are all sorts of political regimes throughout the world who make the same claims with just a little bit more disastrous effect.

  • MARAMA DAVIDSON (Co-Leader—Green): Thank you, Madam Chair. I am picking up specifically on Part 2, clause 20, and I've also got Supplementary Order Paper (SOP) 497 in front of me, which relates to those very clauses. I want to pick up the reasons why the definition of "marae" has been included in the original text, and I also wanted to ask the Auditor-General if that SOP that is now going to remove the words—the definition of the word "marae" is on the table. There is a longstanding legal use of having to single out marae because of the differentiation between private dwellings and the grey area where marae fit. So I understand it was included in that respect, but in Part 2, clause 20, "Powers of entry", it singles out marae specifically originally to actually overlay an extra threshold of protection and criteria so that warrantless entry can happen, and we are seeking to remove marae—and I will come to the context of why that too has happened, but it also then removes those extra layers of protection.

    So I will just pick up on the Part 2 part of the bill, and it is something that the Greens absolutely believe needs to be scrutinised—these warrantless powers—and absolutely uphold that there needs to be public conversation. Some of that we've heard just overnight in the community on social media. But we worked to provide an extra layer of protection around warrantless entry that included for marae needing to have extra grounds or reasonable grounds, and that they would only enter premises if it was necessary to direct people to disperse. There were a number of extra thresholds that were worked on in the current version of the bill. And the SOP—I'm wanting some clarity as to whether those extra protections remain or whether the marae now has the same status as every other venue and place.

    I'm hoping that I can address the context of why, I also understand, removing the word "marae", from our perspective, is important, because there has been public outrage as to that inclusion of the words, feeling that marae were being unduly targeted, particularly in that Part 2, clause 20, of the bill. That outrage acknowledges a longstanding historical, current, and colonial context of the justice system being unfairly applied to target Māori communities, brown communities, and low-income communities. The police themselves have acknowledged that longstanding legacy, and I do acknowledge the ongoing work that they are wanting to do to correct that and to have a different approach. But that is one of the changes that has come through in, I think, SOP 497, but it certainly addresses Part 2, clause 20. Then I simply wanted to put on record that that outrage has come from a particular context and has brought us to some changes which we are seeing today, which I am supporting for that purpose. But some misinformation has also been drummed up, including by the Opposition members around the meaning and the inclusion of the word "marae" in the very first place.

    In my final time left on this particular call, I understand—again, we're going to clause 20, "Powers of entry"—the reasons and the hardships that people have faced with the interruption to our ordinary liberties. We've all felt that in many different ways, and particular groups and people and sectors have felt it in big massive ways. We need this legal framework to be able to sit behind alert level 2, and so on and so forth. I do welcome the change to review—rather than have the two-year outset sunset clause, we will actually review at more regular and closer terms. I think that that's absolutely something that we all should welcome, and I'm very pleased to see that happen also. But I think just if the Auditor-General could explain a little bit more about the inclusion of the word "marae".

  • Hon DAVID PARKER (Attorney-General): Yes, essentially, the member is correct in her description. For the reasons that she's outlined, the combination of these two Supplementary Order Papers is that—assuming they are passed by the committee—if they were to be passed, then section 20(2) then reads: "However, subsection (1) does not apply to a private dwellinghouse" and there is no reference to marae.

    There is the protection left, which has been inserted at subsection (8), that if a marae was entered as a private dwellinghouse—and that's a question of law as to whether it is a private dwellinghouse; we've had that discussion previously as to there being a number of roles that maraes undertake, for want of a better word—then the power that's exercised triggers a requirement to send a copy of the report that has to be sent to someone senior in the police and also to the committee of the relevant marae.

  • Hon TIM MACINDOE (National—Hamilton West): Thank you, Madam Chair. I want to acknowledge the outrage that the co-leader of the Green Party expressed a moment ago about the point that she was making, and also I acknowledge the fact that the Attorney-General has just responded to that. But I am left wondering why the co-leader of the Green Party and her colleagues are not expressing similar outrage to some of the very Draconian measures that this House, this committee at this stage, is being asked to enact in Part 2 of this bill. Because the Green Party has a very long—and they would consider proud—tradition in this country of protesting against attacks on civil liberties and constraints of our freedoms, and they have been extraordinarily silent in all of those matters on this particular bill to this point. So I just ask them to explain to their own members, who are fond of getting out to protest, participating in every demonstration that's going around the country, why they are so silent on this particular Draconian piece of legislation.

    Now, I'd just like to throw my support behind two Supplementary Order Papers (SOPs) relevant to Part 2 that are in the name of the Leader of the Opposition. The first is SOP 500, in which he was seeking to have the restrictions that are being placed on funerals, tangihanga, weddings, and other services—not just in Christian churches, but in places of worship right around the country, this very diverse multicultural country that we have—lifted, because I have been inundated in the last 24 hours by messages of concern by people throughout New Zealand and I'm sure members opposite must have been, as well. I feel it personally. I want to echo the very moving words of my colleague Simeon Brown, the MP for Pakuranga, when he spoke on this topic—it might have been late last night, I think.

    New Zealanders value their right to worship. That is a freedom and a human right that we should never take away from them. The reason why I support this SOP so strongly is because worshippers, whether it's in a temple or a synagogue or a mosque or a church or wherever they might worship—I don't know where Zoroastrians worship, but wherever they worship, and I'm pleased finally that I'll be able to tell my younger daughter I've worked Zoroastrians into a debate—they should be trusted to worship responsibly. I say to the funeral directors, the celebrants, the ministers—anyone who would be organising a service of that type, particularly for those who are grieving—we respect the work you do and we trust you to enforce the rules, as you always would do and as would be absolutely simple for you to do in those places of worship.

    How utterly ludicrous that 50 or more people can go to the cinema and be trusted to sit with appropriate physical distancing but 100 people can't be trusted to go to a funeral in a large church and observe the same rules. That is nonsense. We have called it out constantly. I'm asking one more time, in this committee stage, for the Government—and not just Labour members, but New Zealand First and the Greens as well—to stand up for the rights of those New Zealanders to worship responsibly and not to impose upon them this Draconian, utterly unjustifiable, ludicrous constraint, which is actually going to engender contempt for the law rather than respect for it.

    The other SOP I wish to speak in favour of is SOP 501. I endorse the words of my colleague the Hon Dr Nick Smith, when he spoke earlier. The National Party holds the majority of electorates in this House. We are the largest party in the Parliament. We accept we're not in the Government—there's no argument about that—but, nevertheless, given the important role we as an Opposition have in our constitutional framework, I strongly echo the plea for the Leader of the Opposition to be included in the consultation process. I also acknowledge David Seymour as an electorate MP and his concerns about some of these matters.

    There is good constitutional precedent. We've seen it with the Epidemic Response Committee, which the Leader of the Opposition has been presiding over very responsibly and very fairly; members of all parties have been involved. The same principle should apply in this particular important phase—if this bill is going to go through, and the Government has the numbers to do it—to at least ensure that the Leader of the Opposition can also be consulted.

  • Hon DAVID PARKER (Attorney-General): I say affectionately that it takes a legal vulture to bring Zoroastrians into the religious discussion here—and the member who's just taken his chair, Tim Macindoe, will get the amusing reference that I'm trying to make there. I do accept the point that is made about religious liberties; they're very important. I make the point that the effect of this on religious liberties arises from orders that are made under framework legislation, and I repeat that why the Government will be voting against that Supplementary Order Paper 500 is that we have to contemplate future orders being able to take religious gatherings to limited numbers, as they have been in recent weeks, down to, essentially, zero, at which point religious gatherings have had to be online. It's an undesirable outcome, but that's where we have been.

    The question as to what we do for funerals, whether the limit should be 10 or 20 or 100, as the member would say, is an issue for the notices that are promulgated under clause 11 notices or, previously, section 70 notices under the Health Act. This doesn't do more than those section 70 notices can already do; it, effectively, carries that forward should we have to go up to level 3 or 4 again in the future.

    In respect of the question as to what is appropriate under level 2, I, again, accept that that is an appropriate issue for the Opposition to question, and they should do that, in my opinion, through the criticisms or otherwise of the section 70—now clause 11—notices, rather than through the breadth of discretion that may be necessary in the future under the clause 11 notice, and that's why we will be voting against that. I think I've made it clear the Government's position and reasoning for it in respect of the other Supplementary Order Papers that are already on the Table.

  • DAVID SEYMOUR (Leader—ACT): Well, thank you very much, Madam Chair. I want to pick up on Part 2 of this legislation, and, in particular, clause 9. It says that the "Minister may make section 11 orders", and I actually think that's one of the better parts of this bill, because the principle that's been advanced is that the person making orders that limit New Zealanders' freedoms at least should be somebody that we have the opportunity to vote out. As Karl Popper said, the best you can say for democracy and the main purpose of it is that it allows the people to bloodlessly remove bad Governments. So that's not a bad starting principle.

    The difficulty we have is that there seems to be a lot of confusion in the bill about the comparative role of the unelected Director-General of Health and the elected Minister of Health. Now, I suspect the people of Dunedin North may actually decide to bloodlessly remove their local member, he of the lockdown bike ride, but what they will never be able to do is remove the director-general. There is no Director-General of Health on any ballot paper in any election in New Zealand. The problem is that the way the bill was introduced, it does give considerable powers to the director-general, and, worse than that, in a way, the powers of the director-general are greater than the Minister—in some ways they are; in some ways they're not. This is something that deserves to be debated and is the purpose of a committee stage.

    The Minister, according to clause 9, must, before they make any kind of order restricting New Zealand's freedoms for the purpose of battling COVID-19, consult the Minister of Justice and the Prime Minister, … any other Minister that he thinks fit—that's clause 9(1)(c). They must "have … regard to any [other] decision by the Government on the level of public health measures appropriate", it says. So there's actually quite a lot that the Minister has to consider, and they have to give a 48-hour notice before any public health measures come into effect. All of this, I would say, is a vast improvement on the kind of seat-of-the-pants, unclear, and arbitrary diktat to which New Zealanders were subject during level 4 and level 3 of this COVID-19 crisis.

    But where it gets difficult is that the Director-General of Health can also introduce measures that restrict New Zealanders' freedoms—in fact, in all the ways that a section 11 notice allows your freedoms to be restricted. You can be stopped, stopped from gathering, stopped from doing certain things, stopped from moving things around the country, stopped from opening a business, stopped from going to your church or worshiping, having a funeral—just about anything you can be stopped from doing under a section 11 notice, and the director-general can issue them. So we support the principle of the democratically elected Minister being able to do it; what we don't support is the principle of the unelected director-general being able to issue these notices. The director-general doesn't have to consult the Prime Minister, doesn't have to consult any other Ministers such as the Minister of Justice. He can just make the decision unilaterally.

    So, in many ways, the director-general actually has greater powers than the elected Minister of Health. What's that about? Well, a couple of clues: the director-general can only issue a notice for a region, one territorial local authority at a time. No obvious reason why they couldn't just issue 70-odd and lock down the whole country, but that's one constraint. And they can only issue it for a month at a time, but it's infinitely renewable. So there are some constraints, but, by and large, the director-general has all of the powers of the Minister of Health and far less responsibility and accountability. That seems to me to be a mistake.

    Now, I have an amendment, set out on Supplementary Order Paper 495, which is designed to get around this. The solution, it would seem to me, if the objective is for the director-general to be able to issue sudden emergency orders, if it seems that a virus or an epidemic is about to break out in a particular region and it's a matter of hours, a matter of days, to take action and squash it, well, you can see why the Government might have thought it was good to give the director-general the power to do that in a small region for a short period of time. But a much better way to approach this would be to say, "OK, if that's the objective, fine. I'm not sure I agree with it, but OK, fine. The director-general should be able to issue a notice for 48 hours." Why 48 hours? Because that is the warning that the Minister of Health has to give before his or her notice comes into effect.

    So the policy objective is maximum democratic accountability and maximum nimbleness in moving to stomp out an outbreak of virus. The way to do that is not to give this kind of workaround where the director-general basically has all the same powers, but, actually, to say the director-general and the Minister of Health have different roles. The director-general can issue a short-term, regional directive for a maximum of 48 hours. After that period, it is necessary for the Minister of Health, with all the democratic accountabilities and constraints—they need to consult the Prime Minister and the Minister of Justice and risk being voted out of office for not doing a very good job. That Minister is the only one who can make a directive that lasts longer than 48 hours—so the director-general for the first 48 hours in a region, but everything more permanent than that has to be done by the Minister.

    This is what I mean by engaging to make better law. I'm increasingly coming to the conclusion that, actually, this law shouldn't pass. It's just not good enough, and it's almost—in fact it is—worse than what we've had to date. But let's continue to engage and try to make it better. I would hope that members of Parliament from all parties would consider this point about the interface between the rights and controls afforded to an unelected civil servant—the Director-General of Health—and the responsibilities of an elected politician who can be voted out—the Minister of Health.

    I'd appeal to the Green Party, because for as long as I've been in Parliament, and a lot longer before then, there was one thing you could always say about the Green Party. You might think that maybe their economics were a bit on the unorthodox side, to be polite; you might sometimes wonder if their environmentalism was entirely based on science; but you could always rely on the Green Party to be there standing up for civil liberties, until they got into Government. Here's a great opportunity for the Green Party to stand up, speak their mind, and assert their independence, because I can tell them from bitter experience, if a support party in Government doesn't do that, they're in political trouble. So even if they don't care about civil liberties, they should still do it for the purpose of their own political survival.

    I say to New Zealand First: there's a reason that Winston Peters has been voted out of three electorates and sacked from three Governments. It's because when it really matters, he's silent—haven't heard anything. Maybe he'll try and take the credit for the bill as introduced. Well, that would be politically suicidal in my view. The fact of the matter is Winston Peters should be down here in the Chamber standing up for the basic rights and freedoms of the ordinary bloke and "bloke-ess", which is how he likes to profess himself. But where is he?

    Hon Member: He doesn't care.

    DAVID SEYMOUR: He doesn't care, is what I'm hearing. I think that's a bit harsh. But I would actually appeal—even on such a basic issue as do we give this power to elected officials New Zealanders can vote out or unelected civil servants—for the so-called support parties of the Government—New Zealand First and the Greens—to get down here to the Chamber, take a call, stand up for themselves, and stand up for New Zealanders, because if they don't do that, New Zealanders might just decide to stand up to them in a few months. Thank you, Madam Chair.

  • Hon DAVID PARKER (Attorney-General): Can I thank the member David Seymour for acknowledging that the format of the exercise of the powers under this bill, through the Minister, with political and democratic accountabilities, is an improvement on leaving those powers as they currently are under section 70 orders under the Health Act with the director-general. This is achieved through clause 9 of this bill. I agree with the member, and I also note that this is what the overwhelming majority of constitutional academics have been calling for. I think that is very responsible of the member to put that on the record, and I think he is correct.

    In respect of the statement that this is preferable to—and I think he used the word "diktat", that has been used previously. Can I remind the committee that, actually, the Government is bound by the law, and the existing law under the Health Act required us—and the only powers we had were under the Health Act—to do it that way, which is through the director-general exercising those discretions in respect of those notices, not the Minister. That's what's changed by this bill.

    As to the member's secondary point about whether the power for the director-general to make orders within a single territorial authority—oh, sorry, just before I go that point, I'll go to the point that the Minister must have regard to the advice of the director-general. Now, if that advice from the director-general said, "Look, COVID's passed, no need to do this." or "The risk's passed, you don't need to do this.", obviously, if the Minister then took a decision to impose what were seen by the director-general to be unnecessary constraints on the way we live our lives, that would be just justiciable—and that's another point that David Seymour made yesterday. Obviously, if that happened, I would have thought that the courts would strike down an order from the Minister to that effect, and that's an additional protection that doesn't currently exist at law.

    In respect of the issue as to whether the narrower power in respect of an urgent order for a single territorial authority district should expire after 48 hours, I would note that the director-general has to have found that it's urgently needed and it's the most appropriate way. So, again, there's something justiciable there. I would also note that under clause 15(3), I think it is, of the bill, the Minister has the whip hand and the responsibility, essentially, because it says that "The Minister may, at any time, revoke [a] section 11 order made by the Director-General." So the ministerial authority through that accountability regime and democratic oversight and democratic responsibilities that Ministers have to take is actually seen through that provision. So, for that reason, we're preferring that mechanism rather than a 48-hour expiry.

  • MATT KING (National—Northland): Thank you, Madam Chair. Look, I've been getting quite a few messages from up north asking me what the hell's going on in Parliament, this morning and last night, and so I thought I'd explain it in layman's terms. I said, "Basically, what we've got here is we've been managing a crisis"—and I'll give credit in part to the Government in some of the way they've handled it—"but they didn't have the legal framework to actually do some of the things that they've been doing." I'll give you an example: the checkpoints up north. There's no legal authority to block the road and direct people to receive brochures or be turned around—there's no legal authority to do that. So, effectively, for the whole time that this lockdown's been going, the police have been bluffing.

    I don't blame the police—I've got a lot of time. I've had a lot of contacts from a lot of the police, and they have been really, really unhappy with the situation that they've been put in. So they've been put in a situation where they've got to try and bluff. They had no legal framework. So, effectively, up until now, several aspects of the lockdown have been illegal. So I understand that they're bringing this legal framework in—I get that.

    I sort of wonder to myself: would the Greens have supported this legislation if National had proposed it? Honestly, would they have supported this legislation if National had put this forward? I'd say it would be a big no, but they're swallowing a dead rat.

    So the reason why they won't release the legal opinion is because it's been illegal. But what gets me about this legislation is that the politburo, the Minister, can make a ruling under section 11 and it can be 10 people allowed to go to a funeral and yet 100 people in a bar, and that makes no sense. There's no logic. It's not fair. We have a woman that was locked down in quarantine in a hotel in Auckland, and she couldn't get to see her dying mother, and she was beside herself. They wouldn't test her—she hadn't been tested. She'd been there for about seven days, and she just wanted to go and see her mother and go straight to her house, lock down there, and spend the last two or three days with her mother. I found out from speaking to her that she might not last the four days she had left before she got out. It took the court to overturn a stupid ruling by this Government that they had to lock them down for two weeks and there are no exceptions—it took a court ruling.

    I've got this situation in Kaikohe in Northland where there were five dairies open, with people going in and out at random, buying their product, and yet the butcher and the greengrocer at each end of town couldn't open. One of the greengrocers—he'd spent 20 grand on product because he's stocking up, thinking that he was going to have a run on his product, and he lost the lot. He couldn't trade. For me, that was like, "Where's the common sense in that?"

    So I look down here and I see the rulings that can be made by the Minister or the director-general. I think it's the Minister now; it's not the director-general but the Minister. They can impose conditions on you that they might be able to justify, but as for what's happened previously, it cannot be justified. So we've got an authorised person that can come and enforce these regulations, and the stipulation of what an authorised person is is, to me, a clipboard warrior—a Government employee. I mean, it could be anyone in a high-vis vest who's going to turn up at my business and shut me down based on some rules made by the Minister, and the current Minister is the one that bikes to the beach and goes and moves house and all that sort of thing—so no credibility there.

    So I have real serious concerns about this. The warrantless search of a person's property because they might have 11 people at a wake or a tangi—I can't believe that we are allowing that and that we're going to put a law through that allows even the police or an authorised person to actually go into someone's house over some regulation that the Government have put forward, as dumb as 10 people at a funeral. I mean, it just gets me.

    But what gets me more about this whole thing is that they gave it to us a day or so ago—no select committee, no scrutiny. We're doing it under urgency—no regulatory impact statement, nothing. I'm struggling with how this Government's operating. In my view, this Government should be hanging their head in shame, collective shame, over this bit of legislation. The quote says, "The only thing necessary for the triumph of evil is for good men or women to do nothing.", and that's what I think is happening here.

  • DAVID SEYMOUR (Leader—ACT): Thank you very much, Mr Chair. I acknowledge the Attorney-General's comments in relation to what I said earlier about clauses 9 and 10 and the different powers and responsibilities given to the director-general, a civil servant who's not elected, and the Minister of Health, a politician who New Zealanders can actually vote out if they don't like. I acknowledge what I think was the Attorney-General's answer, that, well, if you don't like it, you can go to court. I actually think it's an improvement on what we've had, but just remember: something happening within 48 hours to get a judicial review—I can't tell you exactly what the going rate is, but as a rule of thumb, getting a judicial review is 60 grand. Not every New Zealander has a spare 60 grand ready just in case they don't like something the Government does and want to get a judicial review. I think it would be better to adopt the amendments that I have proposed on Supplementary Order Paper 495, and properly circumscribe the power of the director-general, than rely on people to take 60 grand off to their lawyer and get a court order, because judicial reviews are not a cheap hobby.

    But I'd like to move on to clause 11, and that is "Orders that can be made under this Act". It starts off fine: it basically gives a list of orders that could be made, but once you look into that list, you see quite how extensive they are. There are some of them that I don't think are that bad—for example, it says, "stay physically distant from any persons in a specified way". Well, that's the sort of law that we could have and perhaps should've had all along, that, you know, you can't come within 2 metres of someone or you can't come within a metre of someone, and you have to be able to wipe down surfaces. If that was the way of stopping the spread of a virus, that might've been OK, because it wouldn't tell any specific person what they could or couldn't do. It would say, "Here are the rules; you innovate around them." A lot of businesses that did innovate got shut down by direct orders, by these "King Henry VIII" - style powers. It's actually really deadening to innovation, to people's sense of ownership and creativity.

    So some of this stuff is not too bad, but there's a lot of it that is far too general. It says, for instance, "stay in any specified place or refrain from going to any specified place: (i) refrain from associating with specified persons: … (viii) refrain from participating in gatherings of any specified kind … require things to be closed or … open … prohibit things from entering any port or place". These are the kinds of powers that allow what we are seeing that is outraging New Zealanders so much. So it's OK to say you can have a funeral with this many people, but a party with this many people. You can worship in a church with 10 people, but you're allowed to have a bar open or a gym with 100. It's that kind of specific diktat that New Zealanders can't understand and are angered by.

    These initial basic rules: don't go within a metre of another person, wipe down surfaces—you know, that sort of thing—don't go near somebody who has tested positive for COVID-19. Those are basic rules that people might say, "OK, we understand the need for that. We can operate around it." But when it comes to these rules that impose on a particular person or a particular type of business or type of activity, that's when it gets really hard, because people get picked and chosen against, and that is not consistent with the rule of law—the rule of law being one of the reasons that you might have thought this bill was worth supporting. I certainly did at the beginning of this debate.

    That takes us to clause 12, which further compounds the problems I've identified with clause 11. You see, you go to clause 12(1)(b) and it says these orders can apply "in relation to people, generally to all people in New Zealand or to any specified class of people in New Zealand". This is where it gets extremely tricky, because instead of making basic rules—we say, "This is the rule of law. These are the conditions that everybody must face."—the Government starts to pick and choose between different groups of people. This is where you have a real problem, because you can only assume, in the context of what's happened with COVID-19 in the last eight weeks, that what they might have in mind is that the elderly should have different rules made for them. Well, a lot of elderly people out there would be highly offended by that. They might say, "It's my life, it's my risk, and if seeing my grandchildren is more important than some calculated reduction in the odds of contracting COVID-19, I should have that right." A lot of people over 70 highly offended by the way that they have been, in their view, patronised.

    But what if it was discovered, for instance—and there's a lot of chatter about this out there—that different ethnic groups actually had different susceptibility to the virus? In theory, this law would allow a class of people to be a race of people. That is an outrage. That is an absolute outrage and should never be allowed under New Zealand's laws. There could be bases for that that we've actually heard people discussing lately, that maybe different cultures have different cultural practices and should be treated differently. Normally, if someone told me that members of this Parliament would start saying that different races should be treated differently, I'd say you've got to be kidding—that wouldn't happen. Well, it's actually started to happen, and now we're being asked to put in place a law that actually allows it to happen.

    Then it goes on to clause 12(1)(c) and says, "exempt (with or without conditions) from compliance of the application of provisions … any … class of persons". So not only can a particular group of people be singled out and have an order placed on them but a group of people can be exempt from it. I spoke at the beginning of this debate, the first reading speech—I said the critical, critical concept here is the rule of law. The rule of law protects the weakest or the most vulnerable and the minorities in our society, because everybody can see it written down in black and white and have it applied to them equally without fear or favour, no matter who they are. The rule of law and the right to live in a democratic society where we can send representatives to this House and debate and make those laws that protect our rights—well, if that's not what it means to be a New Zealander, I don't know what is.

    But this bill—as we get further and further into the detail, we discover that, actually, it allows directives to be made by the Government that apply different standards to different groups of people on who knows what basis that are not properly defined. There's nothing in this bill that says why a different so-called class of people might be treated differently based on the Government's presuppositions about them. That is not the hallmark of a free society where people can point to the law and say, "I have my rights, and you cannot violate them because it's written in black and white in the statutes of the Parliament I helped elect." A society that believes that is the one I want to live in, but the society that this law gives us is one where classes of people can be treated differently by the Government of the day because the Government of the day thinks that it should.

    Now, that is the criticism, but how would it be done better? How could this have been done to achieve the Government's public health objectives, balancing, as I've frequently said in this debate, those objectives with the rights and freedoms of New Zealanders? Well, if the content of clause 11 notices was limited to making basic public health rules that applied to everybody—don't come within contact of another person, don't come within a certain proximity of another person—and didn't single out classes of people or types of businesses or activities such as funerals versus parties, then I think we could say that is the right way to make laws. That is what the great economist and philosopher F A Hayek told us we should do, that we should have basic laws that people can follow, leading to a spontaneous order as people plan their activities around those laws. Unfortunately, this bill goes so much further. It cannot be supported. Thank you, Mr Chair.

  • Hon NIKKI KAYE (National—Auckland Central): I think it's really important, in this Chamber, that we take a moment to reflect on the significance of this bill, and I want to quote back the acting Attorney-General in the opinion that he put up where it said this could, effectively, " if applied to their fullest extent, impose arguably the most extreme and significant limitations on New Zealanders' ability to freely go about our daily lives as has occurred in modern New Zealand history." It is important to look at the backdrop for this bill. I have said many times to my constituents that we understand the scale of what the Government has been dealing with. They've been dealing with imperfect information, a global pandemic at rapid pace, and National supported—as you would do in a national emergency—the capacity of the Government to act and flatten the curve. But the debate in New Zealand on the backdrop to this bill has been about three or four things.

    The first is: what is the country strategy for New Zealand? Is it about elimination; is it about containment or suppression? We have watched across the world as countries like Australia have had similar health outcomes, and it's very relevant for this bill because we are, naturally, as a nation, comparing their outcomes and then what the restrictions of freedom of movement, of freedom of association, are on New Zealanders. So we have had those questions that have been asked. We then had the extraordinary situation where there has been a question of the legality of this Government acting at this time of national emergency, and what we have argued is a very basic principle: not only would you consult with the Opposition at the largest juncture of national emergency in our history but then also you would have transparency about the legal situation in New Zealand. The fact that we have not had what I think is genuine engagement with the Opposition to operate in a way, at the time of national emergency, but also that we have not had transparency about the legal basis of lockdown is incredibly, incredibly shameful.

    The reason that we are here is because we want to do something about it. We want to—and we have an obligation to—assist the Government in a constructive way to develop rules and laws that enable us to, as my colleague David Seymour has said, ensure that we can keep the public safe while doing it in a way that is forensic and surgical and does not impinge unnecessarily on the freedoms of basic New Zealanders. The reality is that what we have had at a process level is absolutely appalling. There have been weeks and weeks of this emergency, and to give the Opposition 24 hours—and I have referenced Andrew Little's opinion about the significance of this legislation—is not good enough. So if we are standing up here and standing up for the right of New Zealanders to have a decent process around this law, it is because we understand the capacity to restrict basic freedoms.

    I want to remind the committee of some of the constituency cases that I have had, but also why the stakes are high. I have dealt with people who are dealing with dying relatives. They can't get out of quarantine; they are, literally, counting down the clock as they may not see their loved ones. I have dealt with people who have not been able to see people and have actually ended up with significant mental health issues. I have dealt with families who are dealing with people who have committed suicide. I have dealt—as many other MPs in this House have dealt—with the social consequences of the restriction of freedom. So we absolutely, in this House, must have a decent process around this legislation, because it deals with very, very sensitive areas of society. The reality is, when you're dealing with the passing away of someone, it is a significant issue to restrict that to 10 people.

    Now, we completely understand that what the Government is now saying is that they will make these rules up post - this bill, but my argument to the Government would be: on the backdrop of a major national emergency, where you've got questions of proportionality, you've got questions of the basis of science and the public rationale, you've got questions of transparency, how could you possibly turn up to the Opposition and give us 24 hours' notice to be able to debate very complex rules and the balance of freedom of association, and the balance of how we mitigate the public health risks with basic freedoms of New Zealanders?

    So my question for the Government is: why can't you properly get to the table with the other political parties in this Parliament at a time of national emergency and work together to adequately define and deal with the real issues of concentration of power? Because I think that that is the right thing to do—I think it is the right thing to do in a national emergency, as a former Minister of Civil Defence, and I think that New Zealanders expect that, because they believe that, actually, this Parliament needs to be respected because this Parliament represents them. So that is my question for the other side.

  • KIERAN McANULTY (Junior Whip—Labour): I move, That the question be now put.

    CHAIRPERSON (Adrian Rurawhe): We've had a lot of contributions—and I will call David Seymour. I just want to ask members to—there's been quite a wide debate that has gone beyond Part 2. One of the exceptions is Mr Seymour, so I am going to give David Seymour the call.

  • DAVID SEYMOUR (Leader—ACT): Well, thank you very much, Mr Chair. It's not that I don't deeply empathise with the points that Nikki Kaye has entered. I represent the Epsom electorate, which is adjacent to her Auckland Central electorate, and we've got a lot of very similar issues going on. It speaks to the need to balance public health measures with the other objectives people have, such as farewelling their loved ones at funerals.

    But I do, in the spirit of what you've said, want to keep very closely to this bill, and specifically the clauses in Subpart 3 of Part 2. They start with clause 18 and they begin with this idea that we're going to have so-called enforcement officers or authorised persons. I think it's really critical that we're having this debate because people who are watching this committee—and I know we're in a ratings war with the Epidemic Response Committee right now—need to know exactly what this bill actually proposes.

    One of the most extraordinary parts is this idea that the Government is able to appoint—or, actually, not the Government; the Director-General of Health, specifically—so-called enforcement officers who can be, initially, anyone. So when they introduced the bill, it literally could have been a group of people who are having a roadblock or checkpoint in the community. People such as that could have actually been given a badge by the director-general and told, "Go hard, and enforce my directives." I think that's something we just need to dwell upon for a moment, because it's quite an extraordinary thing that the State actually has a law that allows it to appoint vigilantes.

    Now, I think it's worth noting that the Government has subsequently introduced a Supplementary Order Paper that says that the person made an enforcement officer has to be an employee of a current Government department. I think that's better, because people in Government departments at least have some sort of obligations to behave in a responsible manner—whether or not they always do is another issue.

    Yet at the same time, we've done the most extraordinary thing, that we've introduced people with quite extensive powers—which I also just want to get to, because people need to understand what powers these enforcement officers have—and yet there is no accountability mechanism for them. I've got amendments on Supplementary Order Paper 496, which I've put up, which basically do two things. First is that there's actually the right to complain about one of these enforcement officers, because as the law's currently drafted, they can come into your house, shut down your business, do all sorts of things, tell you that you can't drive on the road, and if you don't like it, tough.

    The problem with that is that you actually end up with people who know they have no accountability. So it's not just that they're randomly bad and you can't complain about the bad ones. I'd like to remind the committee of a great book again, by one of my favourite thinkers, F A Hayek, called The Road to Serfdom. Chapter 10 of that book is entitled "Why the Worst Get on Top". It's because when a Government introduces a regime for people who want to exercise power—all the nasty little people that maybe had a tough time at school and want to exert some revenge on society—guess what sorts of people sign up for jobs with untrammelled authority! So it's worse than you think, because as soon as those jobs are created, you either get people that have always dreamed of them or people that realise they have unconstrained power and use it.

    So that's why my amendments on Supplementary Order Paper 496 first of all would say that a person may complain to the director-general about the behaviour or conduct of an enforcement officer that, let's remember, the director-general has appointed. I think that is absolutely critical. Secondly, this amendment would give a person the right to receive from the enforcement officer the terms on which they can complain, and the rights that they have under the New Zealand Bill of Rights Act when these enforcement orders are visited upon them.

    I think it's absolutely vital that that process is in place. I've had some discussion with the Attorney-General about this, and I appreciate him being prepared to engage. What he said is that he was open to entertaining part of my amendment, but he's now unwilling to do that because Government employees who work for Crown entities already have a complaints procedure. Well, I understand his logic, but I don't think it's sufficient. Here's why: if it was, for example, a WorkSafe inspector coming into your business and acting at the behest of the director-general, acting at the behest of the Minister of Health, where is the process for a person aggrieved by the way they're treated to actually go and complain?

    This happened, in the lawlessness that preceded, to Jack Lum's, a fresh fruit and vegetable store, an iconic venue in Remuera. They were told, in no uncertain terms—with no comeback and no right to complain—that they had to shut down. Now, the interesting thing about that is that the plain-clothes police officer that told them they had to shut down does have a complaint process; it's called the Independent Police Conduct Authority. But the problem was there was no accountability for the enforcement of this particular directive. That's why this Supplementary Order Paper, that gives people the right and gives people the right to be told their rights, gives them the right to complain to the person that put the directive in place, is so essential.

    I, again, would appeal to members of the committee to actually think carefully about the amendments on Supplementary Order Paper 496, and perhaps for some of the Government support parties that have always been standing up for the ordinary bloke, in the case of how New Zealand First professes itself, or the Greens, that erstwhile defender of civil liberties in this country, to actually consider crossing the floor and voting for it. The reason they might want to do that is that they need to recognise quite how severe the powers of enforcement that these enforcement officers—who are not police, by the way; these are people basically commandeered by the director-general to enforce the director-general's or the Minister of Health's will. Well, they can enter without a warrant any land, building, craft, vehicle, place, or thing, if they have reasonable grounds to suspect that a person is failing to comply with any aspect of a section 11 order.

    So the Government makes an order, and a person can enter your property or your boat or whatever and come and tell you to stop doing it. They can also come into your house or your marae with no warrant, if they are a constable. You know, these are quite big steps. I think we should just think for a moment. I know that there's been a lot of panic around the global COVID-19 pandemic. I know it's a problem, but do we really have a sense of proportionality about the rights and freedoms we're giving away here in order to fight it? I'm not so sure that this Government has thought that through.

    Not only can they enter—going on to clause 21, the power to give directions: "direct any person to stop any activity that is contravening or likely"—likely—"to contravene the order". It doesn't take much of a threshold for you to suddenly get ordered around by a person who wants to be in this role—remember "Why the Worst Get on Top"—of unconstrained power, where you don't get given your rights and you don't have the right to complain to the person that was responsible for all this. It's quite an extraordinary situation that the Government wants to put us in.

    Once they've done that, well, you know, they can close roads, public places, and stop vehicles. Directions may be given verbally or in writing, so they can just tell you. Then you get to the offences: you can be put in prison for six months or fined $4,000 if you don't follow these directives. Now, I actually wouldn't mind having penalties for enforcing the law if the law was tight and clear and appeared to everyone equally and was enforced without fear nor favour, but none of those conditions are met. What you've got is a commandeered rabble of people that the director-general has raised up who can go round, tell you what to do, fine you, or even get you put in jail for six months if you don't follow these poorly defined Government directives. That is why this bill should not pass. The more one looks into it, it's impossible to support.

  • PAUL EAGLE (Labour—Rongotai): I move, That the question be now put.

    Motion agreed to.

  • The question was put that the following amendments in the name of the Hon David Parker to the proposed amendments set out on Supplementary Order Paper 497 in his name to clauses 11, 12, 18, 20, and 24 be agreed to:

    in clause 11(1)(a)(ix), replace "contract" with "contact";

    in clause 12(2)(c), replace "section 11(b)(i)" with "section 11(1)(b)(i)";

    in clause 12(2)(d), replace "section 11(b)(i) or (iii)" with "section 11(1)(b)(i) or (iii)";

    in clause 18(1), replace "the Crown" with "the Crown or a Crown entity (if specified in Part of Schedule 1 of the Crown Entities Act)" in both places where it occurs;

    in clause 20(2) and (3), replace "any specified private premises" with "a private dwellinghouse";

    in clause 20(8), replace "subsection (3)" with "subsection (1)";

    in clause 24(2), replace "a District Court Judge" with "the District Court"; and

    in clause 24(3), replace "The Judge" with "The Court".

    A party vote was called for on the question, That the amendments be agreed to.

    Ayes 64

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8; ACT New Zealand 1.

    Noes 56

    New Zealand National 55; Ross.

    Amendments to the amendments agreed to.

    The question was put that the amendments set out on Supplementary Order Paper 497 in the name of the Hon David Parker to Part 2 as amended be agreed to.

    A party vote was called for on the question, That the amendments as amended be agreed to.

    Ayes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Noes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Amendments as amended agreed to.

    The question was put that the amendment set out on Supplementary Order Paper 501 in the name of the Hon Simon Bridges to clause 9 be agreed to.

    A party vote was called for on the question, That the amendment be agreed to.

    Ayes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Noes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Amendment not agreed to.

    The question was put that the amendments set out on Supplementary Order Paper 495 in the name of David Seymour to clauses 10, 14, and 15 be agreed to.

    A party vote was called for on the question, That the amendment be agreed to.

    Ayes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Noes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Amendment not agreed to.

    The question was put that the amendment set out on Supplementary Order Paper 500 in the name of the Hon Simon Bridges to clause 11 be agreed to.

    A party vote was called for on the question, That the amendment be agreed to.

    Ayes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Noes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Amendment not agreed to.

    CHAIRPERSON (Adrian Rurawhe): The Hon Simon Bridges' amendment to clause 22 set out on Supplementary Order Paper 498 is out of order as being the same in substance as a previous amendment agreed by the committee.

    The question was put that the amendment set out on Supplementary Order Paper 498 in the name of the Hon Simon Bridges to clause 18 be agreed to.

    A party vote was called for on the question, That the amendment be agreed to.

    Ayes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Noes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Amendment not agreed to.

    The question was put that the amendment set out on Supplementary Order Paper 502 in the name of David Seymour to the proposed amendments to Supplementary Order Paper 496 in his name to clause 19 be agreed to.

    A party vote was called for on the question, That the amendment to the amendments be agreed to.

    Ayes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Noes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Amendment to the amendments not agreed to.

    The question was put that the amendments set out on Supplementary Order Paper 496 in the name of David Seymour to insert new clause 18A and amend clause 19 be agreed to.

    A party vote was called for on the question, That the amendments be agreed to.

    Ayes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Noes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Amendments not agreed to.

    A party vote was called for on the question, That Part 2 as amended be agreed to.

    Ayes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Noes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Part 2 as amended agreed to.

  • Hon Dr NICK SMITH (National—Nelson): In my contribution during Part 2, I mentioned I wished to seek leave to table a letter from Nelson funeral directors around the impact of the controls. I seek leave for the letter, dated today, from Marsden House to be tabled as part of the House record.

    CHAIRPERSON (Adrian Rurawhe): Leave is sought for that purpose. Is there any objection? There appears to be none. That can be tabled.

    Document, by leave, laid on the Table of the House.

  • Part 3 Amendments to Civil Defence Emergency Management Act 2002

    Hon CHRIS HIPKINS (Minister of Education): I hope that this will be one of the least controversial parts of this bill, although I'm always open to being surprised on that. These provisions have a relatively simple purpose, and one that I hope members across the House will agree with, which allows for there to continue to be local states of emergency not related to COVID-19 whilst there may be a national state of emergency in place. It is important that we allow for the fact that other bad things might happen around the country and local responses to those will be required even whilst we're still grappling at a national level with COVID-19.

    The second principle behind this particular set of provisions is that local responses to COVID-19 should not be inconsistent with the overall national response approach that we are taking as a country to COVID-19. It's important, as we move out of lockdown, that there aren't contradictory local responses under the Civil Defence Emergency Management Act, and these provisions—I hope which will be less controversial—ensure that those things can happen.

  • CHAIRPERSON (Adrian Rurawhe): The question is that Part—

    Hon Alfred Ngaro: Mr Speaker, sorry, is this Part 3?

    CHAIRPERSON (Adrian Rurawhe): Yeah, I've already started putting the vote, sorry. Members need to be a lot quicker.

    Hon Alfred Ngaro: Sorry, Mr Chair, I thought there was an order there and I was just waiting. The gentleman was getting up. I thought he was seeking a call. The only reason why I hesitated was because I saw the gentleman David Seymour looking like he was taking a call.

    CHAIRPERSON (Adrian Rurawhe): Yeah, but that's not your decision—

    Hon Alfred Ngaro: I do apologise.

    CHAIRPERSON (Adrian Rurawhe): —about who's taking a call. The issue is that (1) members need to stand and seek the call; no member did, therefore I started to put the vote. Once I start to put the vote, I must continue. It is unusual to accept points of order during the—I'm going to seek the guidance of the committee, because it is unusual.

    Hon CHRIS HIPKINS (Leader of the House): I raise a point of order, Mr Chairperson. I have been in this position when I was an Opposition member myself. The only way to resolve it—and it is unusual, and, at the time, the Chair was very clear that he could not stop a vote once it had started, even if there had been some confusion, and at the time it was a National Party Chair of the committee who did it. The only way the committee was able to resolve that was through leave. So, therefore, if the member wishes to take a call in this—I think there is a bit of goodwill here on the fact that this should be well scrutinised—that is a course of action that is available to him: to seek leave to stop the vote and to go back to the debate on Part 3.

    DAVID SEYMOUR (Leader—ACT): I raise a point of order, Mr Chairperson. I just wish to follow up what the Hon Alfred Ngaro has said. He did hesitate because he was very politely waiting to see if I was taking a call. I understand what you're saying about what the rules are strictly, but he shouldn't be penalised for showing a bit of goodwill in the Chamber. So I wonder if I can seek leave to go back to debate on Part 3 in order that he might make a contribution.

    CHAIRPERSON (Adrian Rurawhe): Leave is sought for that purpose. Is there any objection? There appears to be none.

  • Hon ALFRED NGARO (National): Thank you, Mr Chair, and I do want to acknowledge the indulgence of the committee and the goodwill of the committee during this time. It is correct that during this period of time, during the pandemic, we have all been showing a sense of goodwill in the sense of contributing while we've gone through this period and this process as well. It is the role of the Opposition to be able to put forward, I suppose, the cases of concern, though, that have been raised, and I'd like to do that just in my contribution in Part 3 in the Chamber.

    The concerns I raise—and I did raise them with the Minister in the committee stage, but they weren't answered. I raised them because the Prime Minister came into the House and made it really clear that the reason and the purpose was to ensure that we had a legislative framework to ensure that when we went through from level 3 to level 2 that that was appropriated at the right time, but also too that there was a process to engage and there was an exposure draft that was given to those who were concerned, to those inside our community that needed to be contributing, I suppose, to the process. I am concerned, though–when I asked the Minister whether he had received advice from Māoridom, that quite clearly had been given to him prior to when the original draft that had been put out there was submitted into the House—that that advice was not adhered to.

    I want to put this on the record in Part 3: that the advice that they had been given was really clear—that to the Minister and to the Government of the day there is neither a general Treaty clause nor any obligation to have regard to the Treaty of Waitangi or its principles at any point of decision making or performance of functions under the Act. The reasons for that and the principle of that are quite clear. There's no reference point; there's no framework that can be used. Instead, what we've seen are Supplementary Order Papers that have entered into the Chamber during the committee stage to accommodate the concern that has been raised.

    So my speech here is going back to first principles. My speech here is that if we are truly to have a relationship—and I'm now talking to the House, to the history and heritage of the House, where there is a role of responsibility, where there is a Treaty partner. And, then again, the role of that Treaty partner is more than just a partnership. It's called kawenata. It's a covenant. It's a sacred relationship. It's morally irrevocable. Those are determinations. Those are the definitions that are given. And, yet again, that has not been put into place in regards to this bill—that is quite clear.

    CHAIRPERSON (Adrian Rurawhe): I just want to remind the member that we are on Part 3 of the bill and if he could reference his comments to what's actually in Part 3 of the bill.

    Hon ALFRED NGARO: Thank you, Mr Chairperson.

    CHAIRPERSON (Adrian Rurawhe): It wouldn't be too difficult for him to do that.

    Hon ALFRED NGARO: I'll do that, and I do appreciate that indulgence there, and I'm getting to that point of wanting to set that as a reference point, heading towards those elements, which are in Part 3 of the bill.

    But I again want to go back to that, because that sets the platform for the considerations, and these are some of the comments that have come through which do relate to Part 3 of the bill. Because that framework has not been put in place, this is the legal concern from Māoridom in regards to the elements of Part 3, which I'll go through as we are now declaring now inside of this.

    For instance, in Part 3, the amendments to the Civil Defence Emergency Management Act are there. In amended section 66, set out in clause 35, in the amendment, the Minister may declare a state of national emergency. In all of these and the advice—and I have the report that was given to the Minister—it quite clearly states that in all of those elements, what they were seeking for as a Treaty partner was to have a consultation, a point of reference, for all of those decisions when they were able to be made. I'll read from this: "It is of great concern that the interest of Māori are not referred to at all in these sections." And that's the reference to Part 3; that's really clear.

    So I just want to put those on the record and just declare those things. I just want to make that comment in Part 3. Again, this is a part that I've been asked and requested to put forward, and so I've done that in due conscience as an advocate for those constituents that have concerns with this bill.

    Part 3 agreed to.

    Part 4 agreed to.

  • Schedule 1 Transitional, savings, and related provisions

    The question was put that the amendments set out on Supplementary Order Paper 497 in the name of the Hon David Parker to Schedule 1 be agreed to.

    A party vote was called for on the question, That the amendments be agreed to.

    Ayes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Noes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Amendments agreed to.

    Schedule 1 as amended agreed to.

    Schedule 2 agreed to.

    Schedule 3 agreed to.

  • Clauses 1 and 2

    DAVID SEYMOUR (Leader—ACT): I don't wish to labour a contribution on the title and commencement, but I think there is a problem with the title. The title that the Government has chosen, like much of the drafting of this bill as it was introduced, reveals something about how the Government is approaching this issue, and it's approaching it in a way that is unbalanced. The Government has called this bill the COVID-19 Public Health Response Bill. OK, we understand that's part of the problem that this country faces, but there's actually a much wider crisis out there now. Yes, COVID-19 is a problem, for now apparently beaten, but it may come back in mutated strains or in a winter outbreak—who knows? It's certainly a problem we face, but it's not the only problem that we face.

    One of the other problems we face is a global recession, if not depression. We also face significant problems caused by the Government's response to COVID-19 and some of its excesses, arbitrariness, and inflexibility. Those problems are the loss of livelihoods, the businesses that haven't been able to operate, the people who have not been able to grieve their loved ones, and, the most tragic of all, those stories which are starting to emerge of people who have taken their own life in despair at losing their business and losing their livelihood as a result of the Government's COVID-19 policies.

    The proper way to approach this crisis is to see it as a range of economic, social, and health challenges facing New Zealand over the coming few months and, potentially, years. If the Government started from the very simple position that we are going to have to balance quite a range of challenges as we face COVID-19, then it would be in better standing to maximise New Zealanders' rights and freedoms and welfare. We saw it in earlier parts of debate on this bill. We saw it in the Part 1 debate, specifically clause 4, where the purpose of this bill is to fight COVID-19. Aside from saying that that fight should use measures proportionate—to what, it didn't say—there was no concession to the other objectives the Government should have for New Zealanders: preserving their rights and freedoms and the ability to protect their livelihoods in the context of a COVID-19 crisis.

    Hon Andrew Little: It's in there—it's in there.

    DAVID SEYMOUR: The interesting thing was the Minister, the Attorney-General—I'll come to that, Mr Little, who says it's in there. Andrew Little's right: in clause 9, there's one sentence—which, actually, I don't think is a complete sentence, if you want to be an English language pedant—and it's in brackets. So the only referral to New Zealanders' other needs in this bill is in brackets. It's all about COVID-19, and the title of this bill, the COVID-19 Public Health Response Bill, tells us something about the psychology of the Government in drafting this bill and, indeed, in approaching this entire crisis. There has simply been a lack of balance.

    So what would ACT have called this bill? Well, we might've started by saying it would be the "COVID-19 (Balancing Economic Health and Welfare) Bill". It might've been, to use the Government's language, the "COVID-19 (Overall Wellbeing) Bill". We could come up with names all day, but anything that sent a message that this Government wants to strike a balance between New Zealand's other objectives and its COVID-19 objectives would've been welcome.

    Then we come to the commencement, and this commencement is something that is worth noting because it's quite different from the commencement clauses in just about any other bill that I have debated. The commencement clause, for people that don't often read legislation, is a clause that says when the bill comes into effect, and it varies. Often, it's a year; sometimes, it's six months. It gives respect and notice to the fact that people need time to plan for new laws. This is this fundamental principle that people should be able to plan their activities, as Hayek said, without concern for arbitrary coercion by another or others. People should be able to plan their future without someone else coming along and saying, "The rules have all changed, and your plans are no longer going to work out."

    That's why, normally, a commencement clause comes with some time between when the law is passed in this Parliament and when it comes into effect and people are required to follow it. I won't labour the End of Life Choice Act, which has to have a referendum passed and then another 12 months before it comes into effect. This bill comes into effect almost immediately. As soon as the bill is taken over on its fine parchment paper from this House to the Governor-General, who signs it, it's a law. The reason that's being done is because the Government wants it to be in place by 11.59 tonight so that this country can move to level 2. Well, that's an understandable desire, and, under the circumstances, it's the right thing to do, but that's the critical point: under the circumstances. And what are those circumstances that led us to have a bill that's rushed through Parliament and must have the Royal assent immediately so we can move to level 2? Well, basically, the Government started late. We've been told ad nauseum that this country decided to go hard and go early. Well, actually, on any reasonable time frame, we are here with a bill that commences immediately because the Government started legislating so late.

    Let's go through these time frames. There's the time frame of New Zealand's response. Back in February, when I was saying, "The Prime Minister shouldn't be in Fiji for three days; this thing is getting serious—the share market's tanking; 37 countries have it.", well, the Prime Minister stayed in Fiji and was planning to have a huge commemoration with thousands of people for the 15 March tragedy. This Government only put in place serious public health measures in mid-March. They've had two months since then to get serious about legislation—more than enough time, had they anticipated that maybe they would need legislation, to start drafting it, to circulate it, to have a more lengthy parliamentary process so that it could be debated and maybe actually be ready ahead of time so that the commencement wouldn't say it comes into force immediately but actually says it comes into force at least a couple of weeks after, so people would have time to plan. But, sadly, the reason that we have a commencement that is immediate is purely because this Government has been behind the eight ball and behind the preparations of New Zealanders every step of the way.

    You just ask the Retirement Villages Association. They started taking public health measures two weeks before the Government announced any, because they could see it coming. You ask the pharmaceutical guild. They were working with their counterparts around the world weeks before this Government. You ask the people of Taiwan. They told the World Health Organization about human transmission on 31 December last year, and then they issued all of their public health response by 20 January. That's the real time line, and then the Government will try and say, "Oh, this Government went early compared with when the virus arrived in New Zealand." This Government was lucky it arrived so late. It was almost waiting for the virus to get here before it did anything. If we had truly gone smart and gone early like other countries, this legislative drafting process would've started at least two months ago. We would've had eight weeks for it to be consulted on with the public, we would've got much better laws, and we would've had laws that we could live with and support, but, unfortunately, even the title and commencement are extremely difficult to agree with in this bill. Thank you, Mr Chair.

  • A party vote was called for on the question, That clause 1 be agreed to.

    Ayes 63

    New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8.

    Noes 57

    New Zealand National 55; ACT New Zealand 1; Ross.

    Clause 1 agreed to.

    Clause 2 agreed to.

    House resumed.

    The Chairperson reported the COVID-19 Public Health Response Bill with amendment.

    Report adopted.

  • Third Reading

    Hon ANDREW LITTLE (Minister of Justice) on behalf of the Attorney-General: I move, That the COVID-19 Public Health Response Bill be now read a third time.

    It has been a very instructive debate through all the stages of the House in the last day or so. I thank all members, and particularly the members of the Opposition who were right to vigorously scrutinise and contest and challenge the legislation the way that they did. This is not the way that laws should be passed, and I think we've acknowledged that. But these are extraordinary circumstances, and they do call for both the Government and Parliament to be nimble and agile to be able to respond.

    In the contributions that have been made in the last day or so, members opposite have quite correctly raised concerns about the threat to and the curtailing of the various freedoms that invariably orders of the nature contemplated by this legislation would create. They express concern about the threat to the freedom of worship, although the bill does not talk about the freedom of worship and putting limitations on expressing particular religion, and, in fact, it's interesting that even in the last six or seven weeks, many adherents of many religions have been able to worship—differently to what they used to do. They haven't necessarily been able to go to their houses of worship, but they have nevertheless participated in reasonably public services and expressions of their faith.

    Members opposite raised concerns about, as they characterised it, New Zealanders not being trusted. I'm going to come back to that. [Audio failure]

    DEPUTY SPEAKER: Keep going until we stop you.

    Hon ANDREW LITTLE: [Audio failure] issues, and I know the honourable member Mr Macindoe would like me to talk at length, and I would like to respond to many of the things that he raised, but, of course, that won't be possible. I know that some members have claimed that this bill is somehow covering for a lack of authority from the period from the original lockdown, and that is not correct. We've had a debate about the legal professional privilege and whether that can be waived by the Opposition, and I'll just make this point: it is not for members of the Opposition, nor any member of this House, to claim the authority of the members of our judiciary. They are the ones who, once this House has passed a law, determine what the law means and how it applies. That is their job. Our job is to pass law, and no member should be acting in a way that contravenes that relationship of comity between these two branches of Government.

    Members have claimed that there should be greater consultation with them, or at least with the Leader of the Opposition. So I've noted all those sorts of aspects. I note, also, the leader of the ACT Party, David Seymour, who's expressed great concern about the fact that the powers in this bill will allow an undue curtailment of rights, particularly those rights that are adumbrated in the New Zealand Bill of Rights Act, and I draw that member's attention, and indeed the House's attention, to clause 4 of the bill, which sets out the purpose.

    This bill is about a response to COVID-19, that vicious and incredibly virulent and contagious virus that has afflicted the world. The thing about that virus is we don't fully know all the characteristics of it. We know that it is very contagious. We know that it can take up to 14 days to incubate in an individual, and there's some scientific suggestion now that that may, in fact, be longer. If you look at the people, the new cases that are emerging now in New Zealand, some of those recent cases have returned negative tests, and, in fact, I understand, at least in one case, two negative tests have been returned and yet subsequently the person was diagnosed with the virus. We're seeing stories out of the United States now that children who have contracted COVID-19 are now experiencing the symptoms of toxic shock. This is a virus that can have an extraordinary impact very quickly on the community and particularly on vulnerable members of the community. So it is right that we clarify that we have the power to deal with it as we move down the levels and give ourselves the power to respond in a more nuanced sort of way and a more agile sort of way where it might crop up.

    The powers in the Health Act 1956, a piece of legislation promulgated at the time of Sid Holland, as I reminded the House last night, is very crude and very blunt, and extraordinary powers are given to pretty much shut down anything. It is important—as we move out of the most contagious and high-risk period that we had from the end of March and as we move down the alert levels and are able to respond effectively to the risks as they are now—that we have a set of powers that reflects that, that gives the Minister of Health and, where necessary, the Director-General of Health the ability to respond, whether on a national level or at a local level. What we don't want to do is to repeat the experiences of those countries that only weeks ago were being lauded internationally for their response and performance in controlling and containing this virus but are now having to go back the other way—countries like Singapore and Taiwan and, indeed, some of the Nordic countries, too, who were held up as the example—because the reality is we still don't know the true characteristics of this virus and we must have the ability to respond.

    No one, no member of this House, at whatever time they're sitting on whatever side of the House, ever wants this House to be passing legislation that wholesale curtails the freedom of citizens in this country and removes their basic civil rights—those contained in the New Zealand Bill of Rights Act. But also what New Zealanders expect this House to do when confronted with the emergency that we have had and will continue to have with COVID-19 is to take responsible and proportionate action to make sure that we're not putting lives at risk and public health at risk. That's what this bill does.

    I want to congratulate the Minister responsible, the Attorney-General, who has shepherded this bill through the House in his responsive approach to members opposite who have raised concerns and the changes that he has agreed to, now reflected in the bill as it is before the House in this third reading, to create a piece of legislation that I think is not only responsive but also proportionate and that is fair. It is a bill that gives powers in the special New Zealand context that we have: a police force that is more responsive and diverse than it ever has been, that has a demonstrated track record of following its philosophy of educate, encourage, and the last thing they do is enforce, but they take an approach that is about taking people with them.

    I think the House has acknowledged that the way we as a country have managed our response to COVID-19 has been in a way that has taken people with us. There is no such thing as an economy built on a status of public health where too many people find their health at risk, and they just don't know with certainty what might happen. It's actually in the economic interests of New Zealand that we have a regime as represented in this bill that allows us to respond effectively, efficaciously, properly, and proportionately so that we can continue the long, arduous task, along with the rest of the world, of eliminating this virus and getting our lives back to normal. That is an objective we all have. Hopefully, it's not a dream we have, because, hopefully, with effective management and acquitting the powers that are contained in this bill properly in the weeks and months to follow, we will get to that point. We all want to get to that point, and the role of this House is to make sure, and the role of the House will continue to be, under this legislation, of the ability to scrutinise what is happening, bring the orders back—whether that's the Regulations Review Committee or the whole House—to look closely at what this Government is doing.

    I commend the bill to the House.

  • Hon TIM MACINDOE (National—Hamilton West): Thank you, Mr Speaker. I'd like to thank the Minister of Justice for the comments that he made at the beginning of his speech and also to acknowledge that I do agree with some of the other sentiments that he's just expressed. But I have to say to him that judging by the deluge of emails that I have received—text messages, phone calls to my electorate office, posts on social media, and so on—I believe that the Government has badly misjudged public sentiment on this particular issue. Unfortunately, New Zealanders have gone from feeling valued to feeling patronised. They've gone from feeling trusted to feeling that they're being treated like naughty children who can't be trusted, and they've gone from feeling that we've been pulling together as a team of 5 million to feeling that their reward is a chilling and unjustified attack on our civil liberties and our religious freedom.

    This process for this bill has been unjustified, undemocratic, and, therefore, frankly, dangerous, considering how serious the issue is. The most significant constraints on our freedoms, outside of a state of emergency, are being enacted under urgency without calling for submissions, with limited and mostly fawning media coverage, and with no select committee scrutiny. This bill should have gone to a select committee, even if only for a very short period of time, because we should have been reaching out to the public, to legal academics, to practitioners, and to other commentators, who all would have been able to make valid points to improve this bill.

    So I want to quote, if I may, from one email that was sent by a lawyer to the Attorney-General in the early hours of this morning. It's in the public domain because he copied it to all MPs. If I could, I'll just cherry-pick and try to pick out about three paragraphs. He made the point that in one of the speeches the Attorney-General was making in the House last night, he was looking around and asking officials for advice on whether future executive orders would be made under the current section 70 or under the new law.

    He went on to write: "You are the Attorney-General of New Zealand. Who is running this show? First, as Attorney-General, you don't know any warrantless search powers in New Zealand, despite trying to justify the proposed law by comparison to powers you do not know. Next, you do not know which public health power is intended to be used in the future, which begs the question: why are you using urgency to pass the most Draconian legislation for 88 years? The bill seeks to put virtually unlimited and unchallengeable power to control the liberty of an entire population into the hands of one human being—does that sound like another type of society you can think on?"

    He went on to write: "The bill does not provide a general right of appeal, and the majority of the House blindly have the Prime Minister's back. Most people do not have the wherewithal to take judicial review proceedings. And, as the Hon Michael Woodhouse points out, the overbroad purpose of prevention adds significant difficulty in challenging an order."

    Some of his concluding remarks were: "Moreover, how can this bill be something done by ambush under urgency? As Nicola Willis said, we have had seven weeks of restrictions, so, surely, the legislative basis for moving to level 2 should have been considered and tabled before late on Monday of this week in order to allow a democratic process. That is not democracy; that is a circus. It is shameful. This is the most Draconian piece of proposed legislation ever seen in this country, at least since …"—and he quoted a depression-era Act of 1932—"This is a Government that was asleep in allowing, indeed, encouraging, the importation of the virus by telling people to rush home to avoid self-isolation. Months after foreseeable risks, this Government continues to make panicked reactions that are destroying individual lives and livelihoods and now democracy itself."

    So I thank that gentleman for his detailed and considered email. I hope that following Government speakers will answer some of the questions that he raised in it and respond to the concerns—and, as I say, I have only been able to highlight a few of them.

    Let me pick up again on the point that the Minister of Justice was making: all New Zealanders wish to continue to lock in the gains that we have achieved together during the COVID-19 crisis. We've all been looking to minimise the risk of further importations or community transmission of this disease. That has never been in dispute, and it isn't now. It's why there was such unity and firm resolve in this House when we voted to suspend at the end of March and place our country under lockdown.

    Public support for those initiatives has been evident in neighbourhoods around the country where physical distancing has been observed and people have worked from home wherever possible, while essential workers have continued performing their vital roles under stringent rules and often challenging circumstances, and I'm sure we thank them all. We owe a huge debt of gratitude to everyone in our team of 5 million who's assisted us to reach the point where we can now move to level 2 tonight—not a moment too soon.

    The Government has repeatedly made its expectations clear of all of us throughout the period since the crisis began. The Prime Minister repeated her expectations—albeit, not all that clearly at times—when she announced the decision to move to level 2, during her media conference in The Beehive Theatrette on Monday afternoon.

    But there are clear expectations from the public that the level 2 regulations will be justified, reasonable, and necessary. As I stressed in my previous speeches, and so have many of my colleagues, the cruel and inexplicable constraints on religious worship, tangihanga, weddings, funerals, and so on, are anything but reasonable. New Zealanders are distraught that the Government has refused to make the changes despite being offered the opportunity in some Supplementary Order Papers today. For that reason alone, we should be cautious in proceeding with this legislation and alarmed that it's had such a truncated process under urgency.

    Last night, Kiri Allan called me out, I think, for comments that I had made about the urgency process. So I want to point out that the Attorney-General wrote to me and put through a courteous phone call at 5 o'clock on Monday evening, but he wanted a response by 10 o'clock the next morning. Well, I don't know any time that a caucus—particularly when flights are not operating and members are in their electorates the length and breadth of this country—could possibly meet to have a considered approach to a bill that they haven't seen—and the bill wasn't available—and have a response in by 10 o'clock the next morning. So I say to Kiri Allan that her comments last night were disingenuous, they were wrong, and she should not purport to suggest that this was just urgency as we know it. It was not—it could not be. No party caucus is able to consider its position under those circumstances. So that's why I say it's been a very poor process.

    Some laws do need to be considered and enacted at speed. No one denies that. We've done it, and all previous Governments have done it. But this Government has had weeks since we went into the lockdown to get its arrangements for level 2 under control, clearly articulated, understood by members of the public, and to have taken the time—albeit with a truncated select committee process—to pass such a bill, if needed, through the Parliament.

    Yesterday morning, we requested a briefing from the Attorney-General and some of his officials—and I acknowledge that we received that, although the Attorney-General wasn't able to participate in it, and so the officials weren't able to engage in the more political aspects of that discussion. So it was of some value, but only of limited value.

    Let me just return to the point that I made in my first speech, because it's all about the whole purpose of this bill. The Attorney-General was right at that point to highlight the fact that for our economic and social prosperity, we need to go to level 2. Livelihoods have been put at risk. Jobs have been lost. Many people have gone on to benefits. Many businesses have gone under, and many more, sadly, will in the weeks and months ahead. We all collectively share grave concern about that. We all collectively wish, and need, to see our economy get strengthened, get back on track, for businesses to have the confidence to take on staff, for investors to have the confidence to invest, and so forth—particularly for industries such as tourism.

    But a move to level 2 was never dependent on the enactment of this bill. Our civil liberties have been put at risk in ways that cannot be justified and that, in weeks and months ahead, I'm sure, will be shown not to have been justified and that it was too high a price to pay.

  • Hon CHRIS HIPKINS (Minister of Education): In fighting COVID-19, New Zealand went hard and we went early, and we are now enjoying the success of that effort. We shut our country down far sooner than just about any other country in the world, when our case numbers were still very, very low. The result of that is that we not only flattened the curve; we squashed it. The last thing New Zealanders want to see now, as we come out of the other side of a very harsh seven weeks, is to see that curve tip back up in a dramatic fashion. That is what we are working to stop. Let's be very clear about that. The Government on this side of the House does not want to see the enormous sacrifice that New Zealanders have made over this last seven weeks be in a vain. We want to lock in the gains that we have made and ensure that COVID-19 cannot get a foothold.

    We have seen in the House in the last 24 hours some passionate speeches about civil liberties, some passionate speeches about good parliamentary process, and they've been very, very well made. They've been very good points—very legitimate points. As a parliamentarian, I agree with many of the points that have been made by members opposite.

    COVID-19 respects none of those things. The reality is this virus will grab a foothold wherever it can. It does not respect civil liberties. It does not respect something as sacred as a funeral. If someone goes to a funeral who has COVID-19 and there are other people at that funeral who are in high-risk categories and that virus is spread, there could be more deaths from that funeral. That would lead to greater tragedy for all those involved. I acknowledge funerals are a tragic time. They are a time when we come together to comfort the grieving. But COVID-19 doesn't respect that. It simply doesn't respect it. We as a country have to stick together by staying apart. That is the reality. We do not want COVID-19 to take off in New Zealand, given the success of the sacrifices that we have made so far.

    Now, the Opposition asked why we can't have level 2 under the existing laws, and I think the Attorney-General has pointed out that level 2, under our existing legal framework, would potentially be harsher than level 2 under this law. This law actually allows for more moderate action under level 2 than could be taken under the existing law. So this law is actually about making sure that we can get New Zealand moving again, we can get our economy moving again, we can get people back to work, but we can keep New Zealanders safe in the meantime.

    No one in this House should feel comfortable curtailing civil liberties—curtailing other things that New Zealanders in normal times would take for granted. I did not feel comfortable sitting on that side of the House when Gerry Brownlee brought a bill to the House that curtailed the civil liberties of Cantabrians, that confiscated their property rights, in urgency after the Christchurch earthquakes, but it was the right thing to do. It was an extraordinary set of circumstances, and Parliament needed to take extraordinary action in those cases.

    Gerry Brownlee did the right thing in bringing that legislation to the House. It did make us all feel uncomfortable, and there was fiery debate at the time. I think—and I do want to say this; it probably wasn't said to Gerry Brownlee at the time very much—he was placed in an impossible situation where no one was going to be happy with his response, and I actually think he did pretty well on balance overall of managing that immediate aftermath of the Christchurch earthquakes. It did mean that Parliament had to make some tough decisions to back the actions that he had to take, that ultimately curtailed people's liberties, potentially took away their property rights, and left a whole lot of people feeling pretty unhappy.

    No doubt about it, this legislation will leave some people feeling that their civil liberties have been curtailed and that they're having to make further sacrifice. We need to do that because we do not want to see a greater tragedy in New Zealand. There are hundreds and hundreds of people dying every day in other countries who did not take the action that New Zealand has taken. They will suffer a much longer lockdown, and, if they come out of lockdown sooner, they will potentially see their curve explode, their health systems overrun, and thousands of people a day dying. That is something we've avoided in New Zealand, but, to keep avoiding it, we'll have to stay vigilant. This legislation creates the right framework for us as a country to stay vigilant, and I support it.

  • Hon GERRY BROWNLEE (National—Ilam): No one is disputing that there is a need to stay vigilant. No one is disputing that we all need to continue following the public health advice that's been so prevalent and so much driven into us or drilled into us over the last seven or eight weeks or longer and that, I think, need to be continually repeated messages. I found it fascinating that we have to tell some people that it's a good idea in most circumstances to wash their hands, that we should also clean down hard surfaces—those basic sorts of things. Yep, we've got to keep doing it, and we've got to also maintain respectful distance for a time longer.

    But the question is: when there is no pandemic notice and no epidemic notice, who's making the decision that we continue to have these restrictions that can be now imposed on us, if this bill passes, by a simple notice, largely driven out of the Prime Minister's office and enforceable—enforceable—with immediate fines and possibly court action? There doesn't seem to me to be a regime where the whole team of 5 million or so is being asked to put all hands to the pump and get stuck into beating this thing. The worst of it is that the price that's being paid for that win is going to be decades long for all New Zealanders, and it bothers me that as we have seen now, the benefit of New Zealanders' largely voluntary response—I won't get into the issue of legality; that's got a bit more to play out yet—that I think would have been there regardless of what law was particularly called on because of the circumstances that existed seven weeks ago, the benefits from that are not now being realised to the extent that they should be.

    It won't be long before the number of New Zealanders losing their jobs every day and going on to the jobseeker benefit—and remember that that's only a fraction of those who are losing their jobs. There are many more who don't qualify for that who would have been in work. That number will very quickly escalate to a daily total bigger than the entire number of people infected by COVID-19 over the last seven weeks. Now, if you put that into some perspective, it gives an opportunity, I think, to show a lot more trust in New Zealanders, because the other thing that's not being recognised here is that we are never going to be without it. Yes, there will be a vaccine at some point, and there will have to be other vaccines as there are mutations of this particular COVID virus, but it's not imminent. So we are going to have to work out how we live with it. Are we going to be in a level 3 lockdown right to the duration—well, for the foreseeable future?

    I want to congratulate the Government for accepting the limitation of 90 days or so before Parliament reaffirms any actions that are taken under this bill. That's a good thing. The good thing about it is it will mean that the decision makers—in this case, one decision maker: the Prime Minister—will have to think about all the broad consequences of any decision that's made. I want to acknowledge the Government for deciding that the enforcement officers couldn't be just anybody plucked off the street, given a badge, as it were, and told to go around knocking on doors and using their powers if they thought it was reasonable in their view. There is now, as Crown employees or Crown appointees or Crown contractors, the opportunity for a great deal more control over that. It's important. I think that's good, but I'm disappointed that they could not have seen that it was an opportune time to include the whole of the Parliament in the consultation only—consultation only—on the section 11 decisions.

    We did move a Supplementary Order Paper—it was defeated by the Government—that would have had the Prime Minister consulting—that means picking up the phone and talking to—the Leader of the Opposition when there was a proposal to introduce some section 11 amendments. Now, consultation doesn't mean "have to do as they're told" or "must listen to every little point" or "consider every little point"; it just means "have a discussion". This Parliament has a party of 55 on this side of the House—the largest party in the House, the largest number of voters per party of any in the House—but the Government has decided no consultation on that basis, absolutely not. I think that's a weakness in the bill that's being passed now—one of many.

    The other thing that bothers me a little bit about this is, under those section 11 notices—you start to analyse in your head—what are they going to be used for? One area we've seen, of course, is perhaps a continued restriction on church services, perhaps a continued restriction on the funerals. We're told that the number is going to be 10 for those sort of activities—10 people. A week ago, it was going to be 100. It's gone down to 10, and maybe in another week's time, or two weeks' time, it'll be expanded out a little bit more. That's one area that is of concern. The next, though, is in the hospitality area.

    I do worry that some of the influences in this bill, particularly from the police, may be sort of an underlying desire to have some sort of local alcohol policy applied across the whole country. I would hate to see uniformed policemen going into bars, counting heads, checking times, measuring distances, and any other restriction that might go into one of these. That's not good use of police time, because one thing we can be sure of is that while the country has been diverted over the last X number of weeks, worried about this COVID virus, crime has continued. It's also a known fact that when you do have a disaster of this sort that you're trying to deal with—a crisis or whatever you want to call it—criminals always find a way to benefit from it.

    So I don't want to see the police made some sort of pseudo crowd-control organisation. I think they came dangerously close to that with some of that footage that was shown of them shuffling people off Sumner Beach a few weeks ago. That was not a good look. And to tell New Zealanders who were quite peaceably going about things, keeping their distance, that it was OK for them to be running on a beach but not sitting there having a bottle of water was, I think, a bit of a disgrace. It sort of worries me that many of that type of element is captured here. I feel sorry for those police staff who were required to do that, because they're New Zealanders as well. They think like the rest of us. They enjoy the freedoms that the rest of us enjoy, and they don't particularly, I'm sure, like having to enforce stuff that in the end is a little bit on the petty side.

    So we're not supporting this bill, because there has to be a line in the sand that at least starts to say to New Zealanders there is some light at the end of the tunnel, that we are going to be able to work out how to live with this virus in the world in the future, because it will not be going away. It will not be totally eradicated, and it probably hasn't even inflicted the greatest amount of damage that it will eventually because of many other countries in the world where we just don't even know what's going on.

    So yep, we've got to do some things that protect our local economy, but part of it has to be trusting New Zealanders to accept that in this new environment, they've got to do what is best for them and what is best for the country. Unfortunately, this bill takes away that sort of element of trust, takes away the element of discussion with New Zealanders about what would be a good thing to do, and, most concerning of all, it concentrates all of the decision making in the hands of one person, the Prime Minister, without any requirement for what the Prime Minister must consider before deciding to gazette the circumstances that will lead to a section 11 notice.

    Be clear: it's the section 11 notices that will put the restrictions on church services, the restrictions on attendance at funerals, the restrictions on public gatherings, the restrictions on cafes, the restrictions on bars—and you could go on forever. But in the end, we need to lighten up a little bit, trust that New Zealanders have done a good job and will continue to, keep up those public health messages, and make sure that we are all aware that this is something we live with from this point on.

  • Hon RON MARK (Minister of Defence): Thank you, Mr Speaker. I rise to make a short call to once again reaffirm that, despite all the conversation, the debate we've heard—and I acknowledge that there has been some serious and genuine debate and some serious and genuine expressions of some concerns from the Opposition—New Zealand First will be supporting this third reading of this bill.

    I've got to say I am reminded at times like this of a view that I've long held, from 20-odd experiences in Parliament, that 90 percent of the people that come to this House come here for genuine reasons; they truly do want to make the lives of New Zealanders better. We may approach some of the problems from different philosophical views, and we may approach them from a party perspective, but, generally speaking, in all my time here, I stand by the view that 90 percent of the people that come here—probably 95 percent—come here and strive to do the very best they can for New Zealand. There are also times when one finds themselves here in Government, and other times when one finds themselves in Opposition. And there are times in Government when some hard calls have to be made, and one does reflect and wonder how one might approach that particular decision being made by the Government of the day if one was in Opposition.

    And it's interesting to hear—and it's good to hear—Minister Hipkins say that, if he were in Opposition right now, he might well be expressing some of the same concerns. It's good to hear him acknowledging the Hon Gerry Brownlee, who carried the torch for his Government through the difficult times of the two Christchurch earthquakes and through Kaikōura. My children and my grandchildren still live in Christchurch and have lived through all of that, and have noted that it is tough being in Government at times. There are decisions that have to be made that don't sit well with our norm—the way we normally would do things. COVID, as Minister Hipkins said, does not respect any of the norms, and we have to, as a nation, be proud of the fact that, at this point in time, we've taken some hard decisions. We've paid a massive price, and the price is still going to continue to be paid for a little bit longer yet—we know that—but we have smashed COVID. Let's be clear about that: we've made massive gains. The danger is one that every corporal who becomes a section commander of an infantry section knows; that every second lieutenant who becomes a platoon commander knows; that every captain or every major who becomes a company commander or lieutenant-colonel who becomes a battalion commander knows, and knows well, and it is this: you are your most vulnerable at your time of victory, when you have taken the objective and you think you've won. That's when an astute enemy knows you're weak. We're at that point. We're at that point right now: where a good decision or a bad decision can undo everything in the blink of an eye.

    None of us likes what's happening. I've had to deal with people through my electorate office who have lost loved ones. Do I like the fact that we've imposed these restrictions on them? No, I hate it. It cuts. If it were one of my family, how would I feel? No one likes some of these restrictions that we're now going to have to put in place through this piece of legislation, but it's better to have a ball-peen hammer to deal with the challenges than to be exercising the sledgehammer that a state of emergency would have us do.

    On balance, I want to recognise and pay tribute to the Opposition for doing their job, but this is the right decision. This is what we need to do. If we come out of this harder and faster and moving quickly as we re-establish our businesses, re-establish some norms in our lives, and are able to hold memorial services for our loved ones that we have lost, not necessarily through COVID—I've got a string of veterans, and, every day on Facebook, I see another veteran has died, every day; very often two or three. It pains me to know that all their mates will not be able to attend those funerals. There will be no guards of honour, there will be no gun carriage, there will be no gathering at the RSA after. It pains me that that is the reality we are having to deal with, and we will pick these things up with memorial services, in time, in our own little ways. My heart goes out, but this is the right thing to do. New Zealand First will support the third reading of this bill.

  • BRETT HUDSON (National): Thank you, Mr Speaker. I rise in continued opposition to this bill. Let's make no mistake: the powers within this bill give the Government—and that's the executive Government, not its agencies—enormous scope to curtail the civil liberties of New Zealanders under any conditions related to COVID equal to what they have seen over the last seven weeks. And now, as we are debating in the third reading, we still have a situation where the bill that is actually before Parliament and will soon be voted on is not what was put on the tin by the Government when it introduced it. The public have a right to rely on the statements of Government and its Ministers when they say they're doing something for a purpose, but then they discover that the purpose is actually not that which was articulated.

    We were told—the public were told—when this bill was introduced, that this was about being able to set compliance conditions and manage enforcement in level 2. In fact, it was stated we had to do this to get to level 2. Now, that is actually not factually correct, and it's not absolutely necessary. We were in level 2 a number of weeks ago. These powers weren't available then. We did it then. We could certainly do it again. But we were told that it was needed for level 2 and beyond, which is level 1, but we've learnt as we've gone through this extremely shortened process under urgency that the provisions in this bill and the powers it unlocks are also available should we return to either level 3 or level 4. That is despite the fact that we already have a legal framework for dealing with this pandemic under level 3 and level 4 risk profiles. They include the Epidemic Preparedness Act, the Health Act, and the Civil Defence Emergency Management Act (CDEM Act).

    We've been told by this Government, and the Attorney-General in public said, that there was no enforcement gap under the lockdown. So there's no gap in the powers under the existing framework for level 3 or 4 conditions, so there's no reason why level 3 or 4 should be included within the provisions for this suite of capability and powers to deal with level 2 or level 1. So I sought to test that through the process and challenge the Attorney-General, the Minister in charge of the bill, on why it was the case that these powers were in some way different for the ordinary New Zealander. I'm not saying that the wording is exactly the same. I'm not saying that every provision in the Health Act or CDEM Act are mirrored in this. But for the ordinary New Zealander, for them, lockdown meant the Government could tell them exactly what they could and couldn't do, when they could go out of their homes, and for what purpose; that if they could work from home—oh, if they could work at all—they would have to work from home; that if they did go outside for exercise, there were conditions around what that exercise could be, how far away from their home it could be, under which conditions they could drive there; what businesses could open and under what conditions they could open; and what businesses the public could or couldn't access.

    We are left now with the position of a suite of powers which mirror the ability to do that level of impingement on civil liberties. As I say, they may not be exactly the same as the powers in the existing legislation, the Health Act and CDEM Act, but for the common New Zealander who's experienced lockdown for now seven weeks, or just about, the powers in this bill enable the same level of impingement on their rights. So I challenged the Minister on not what was different; what was materially different, or what was constraining powers. He started off by saying, actually, this is more constrained because for warrantless entry on to premises the constable will have to report on it. Well, actually, that's a good thing. But there's no reason why that provision couldn't have been an amendment to the Health Act and the CDEM Act, and actually should be, because it's probably a good idea under level 3 and 4. On its own it is not a reason to have a new legal framework and powers that include the ability to use it under level 3 and 4.

    Then the Minister said, "Oh, it's actually needed because this has got an ability to control the basis under which businesses can open and operate." Well, we're still under level 3 at the moment, so I refer the Government back to lockdown. During this whole process, the Government has decided what businesses can and can't open; the nature of how customers can enter those premises, such as supermarkets, which have limited numbers, or dairies, which have one in and one out; why dairies can open but butchers can't; and how under level 3 a business could reopen as long as it was contactless ordering and either delivery or pickup.

    So the Government's either saying that it didn't have the lawful authority to do that under the pre-existing framework so it's necessary to be in this new bill, in which case that opens one large can of worms, or, if it claims it did have the lawful authority to do that over the last seven weeks, then it is not necessary for that part of the provision to be in this new bill. To the extent where it isn't necessary but may be desirable, I go back to the point that they could have made that amendment into the Health Act, possibly into the CDEM Act, and, to the extent they needed a separate bill, the separate bill could have been, and should have been, limited to alert levels 1 and 2, which is what the Government actually said when it was introduced.

    So then the Minister said, "No, it's got further constraint on the powers, because Parliament will have to confirm an order made under section 11, and, if it doesn't confirm it, that is revoked." Well, the confirmable instrument is a very important part of our constitutional protections. And, ordinarily, it's used for matters that are expected to persist for some time longer than a single order under this bill and particularly not in areas which are so severe in their potential curtailment of civil liberties.

    So the point more than that, though, that I would make about the bill, as it may shortly be enacted, is that Parliament may not be able to make a determination on that confirmation for up to 60 days after the Government's given itself the power to do things. What is more, there's an explicit provision that says, if Parliament doesn't confirm it—doesn't confirm the order and therefore it is revoked—any action taken under it is still valid. So if Parliament says the order was wrong and shouldn't have been done, there is no remedy for the persons affected by that order for the period until Parliament makes that decision. But if it was held, none the less, that such notices should be confirmable instruments, then, again, it goes to my point that for level 3 and 4, which are already dealt with under an existing legal framework which includes the Health Act and the CDEM Act, that amendment should have been made to those Acts and that this bill should have been limited to alert levels 2 and 1, which is precisely what the Government said it was for when they introduced it.

    We are debating a bill, and, if the numbers stay the same—unless the Greens suddenly reawaken and rediscover their passion for civil liberties or New Zealand First discover that they truly do believe in the common New Zealand bloke and blokess—then this thing will pass. And it is going to pass in a way that allows the executive Government to do things to New Zealanders that they haven't been able to do to date, and they were sold on it being something else.

    I want to touch upon a part of the debate that didn't rage—it was discussed—about who it should be that issues these orders and has the power. And we were told that some legal academics think it should be the Government because it's accountable democracy—people can vote them out. Ordinarily, I wouldn't disagree with that, but in the area where you are fundamentally locking people down, where their liberties are constrained so much, it should be the Government that brings the bill, Parliament decides whether or not it can be used, but the execution of those powers should be at arm's length from political manipulation. It's actually why it's right under the current framework that is the Director-General of Health under the Health Act and the Director of Civil Defence Emergency Management under the CDEM Act, because it takes away the risk or imputation that the powers are being used with some political agenda in mind. Flipping that over to be the Minister of Health will simply reduce confidence within the public that there won't be any political machinations or ideas or agendas in any decisions that are made under this.

    Lastly, I'll just briefly touch on the enforcement officers piece, which could have allowed almost anyone, such as the community checkpoint operators, to be given a clipboard and suddenly make all sorts of enforcement decisions. I'm a little concerned about the language that remains, which is "engaged by the Crown". I didn't get the opportunity in the committee of the whole House, but I just worry that perhaps, if a group received Government funding for mental or physical wellbeing, they could be considered to be engaged by the Crown. We do continue to oppose this bill.

  • MARAMA DAVIDSON (Co-Leader—Green): The Greens are cautiously supporting and will be monitoring this, the COVID-19 Public Health Response Bill. What we are very clear about is that every life matters, no matter what age, no matter what community, and no matter what background or experience you have had, and that has been the driving force behind the public health collective community approach in the way that the Government has operated. That very strategy is in fact what has also helped to minimise the impact of the very communities who stand to be harshly impacted on the most—those with the least resource, those with the least support, those whose immunities are compromised, and those with long-term historical situations of being undermined by the current systemic biases in our health system. That is why the Greens have continually supported the overall approach of this Government in putting the public health and safety and wellbeing of everybody first, unlike many other countries and many other approaches, which have deemed some lives less important than others—some lives less valuable than others.

    That is the starting point of why we are looking to ensure that there is then a clear set of rules and a legal framework to be sure about what our police and what our ministries and agencies can actually do to uphold that approach. Not having a clear legal framework and not having clear guidelines will also negatively impact on the very communities that the Greens—that I—have long been standing up for—the very communities who have the least power and resource and networks and lobbying power to be able to have a strong influence in this very House of Representatives that has long been historically putting particular groups of people and communities at a disadvantage. We do need clear legal frameworks and the architecture behind what our agencies—our State agencies and our Government agencies—do to ensure the safety and wellbeing of all of our people. That is our starting point.

    Yes, we must have every caution over the way that our civil liberties are being disrupted, and, again, we have long been a clear voice in that instance, and we will continue to monitor with caution and be wary of the disruption of those very civil liberties, of the very way that we uphold to be able to live and move and breathe in this country. That is why—that is why—we are being very clear and worked really hard to put in place further checks and improvements on the disruption of those civil liberties.

    But let me be also clear: this is a global pandemic the likes of which I have not seen in my lifetime in this House, the likes of which the Green Party has not had to deal with in our history. Those are extra considerations. Those are massive challenges that require, yes, a political balancing of disrupting our civil liberties. We understand why there has been the need—the safety-first, the collective wellbeing - first, need to disrupt those civil liberties.

    We also understand the validly held, the passionately held, worries that are coming from different communities right now to the ongoing disruption of those very liberties. I do again want to acknowledge the valid concerns of Māori, low-income, and brown communities, who have long been at the unfortunate hand of the systemic racism and bias within our police and justice system. That much no longer even needs debating. It is very well-established, including with the acknowledgment of the police themselves, who I continue to look forward to working with as they seek to correct that injustice—that colonial, historical, and present-day injustice that they themselves acknowledge needs turning around. It is in that context which we have received fair outcry against the way that this bill has seemed to continue to run over those civil liberties of those communities in that context.

    We need to be absolutely clear that these broad-ranging powers will not continue to exacerbate those very inequalities that have always existed—that we will not see police or enforcement officers busting into my Manurewa and South Auckland communities as opposed to those house parties in Remuera. We will need to all be very clear that this is not what this bill can continue to support. We are all on record to make sure that we do not continue to see those injustices applied the way that they have been for such a long time.

    I wanted to go through very quickly some of the checks on warrantless entry powers that we have worked hard to be able to stand here and keep supporting the public collective—

    SPEAKER: I apologise for interrupting the member, but it is coming up to 1 o'clock. The Government has indicated that it does not wish to continue urgency.

    The House adjourned at 1 p.m. (Wednesday)