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COVID-19 Public Health Response Act 2020 — Finance and Expenditure Committee Inquiry—Referral

Sitting date: 14 May 2020

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  • COVID-19 PUBLIC HEALTH RESPONSE ACT 2020

    Finance and Expenditure Committee Inquiry—Referral

    Hon DAVID PARKER (Attorney-General): I seek leave to move a motion without notice instructing the Finance and Expenditure Committee to inquire into the operation of the COVID-19 Public Health Response Act 2020 .

    ASSISTANT SPEAKER (Hon Ruth Dyson): Leave is sought for that purpose. Is there any objection? There appears to be none.

    Hon DAVID PARKER: I move, That the Finance and Expenditure Committee inquire into the operation of the COVID-19 Public Health Response Act 2020 and report to the House no later than 27 July 2020.

    Madam Speaker, that's the motion. May I now speak to it?

    ASSISTANT SPEAKER (Hon Ruth Dyson): Certainly.

    Hon DAVID PARKER: Thank you, Madam Speaker. Members are aware that we passed a bill two days ago, I think it was, on Wednesday, in advance of the move into level 2 to create a new legal framework for level 2. We, in the Government view, thought it was necessary to do that under all stages under urgency, in order to have it in place by 11.59 p.m. that night in order to have a proper legal basis for the move into level 2. We also had a debate in this House—despite the powers under that bill being narrower than the powers that were in place as we debated the bill, under the Health Act—as to whether the powers that are given in respect of what are now section 11 notices under that Act, compared with the section 70 notices under the Health Act, raised important issues of civil liberties. Members of this House expressed discomfort with doing that through urgency and would have preferred a select committee process, and we explained at the time that we didn't think we could delay that for a select committee process.

    After the bill passed, some suggestions were made, actually—including by legal academics, through social media—saying: well, why don't we actually have a look at it again at select committee now? So that's what this motion enables.

    We've proposed that it be the Finance and Expenditure Committee (FEC) for a number of reasons—(1) the decision-making power also now includes economic aspects as well as health matters. But I think, as all members know, the FEC has a representation of senior members. It's actually a large committee, and, if we give up one of our spots—which we intend to do—to the Green Party, every party in Parliament will be represented on the committee. There are already a number of lawyers on it, which is appropriate given the civil liberties issues that arise, and, of course, parties can choose to sub other members on if they feel that they need additional expertise different to their normal membership of the committee. It will be up to that committee as to how they decide to run their process. We're not controlling that through this motion.

    The final point I will make is that in respect of the report back date, the date of 27 July 2020 is chosen because that's a couple of weeks before the first 90-day roll over comes up. The bill requires this Parliament to refresh the powers in that bill every 90 days, and it would be helpful to have the report of the committee back to the House before Parliament considers the roll over of that, should it be necessary by that time. I envisage that the world won't have COVID under control by then, so there's a more than remote possibility that the Government will want to renew it at that date, but it would be useful, for that debate, for the House to have the report of the committee by that time.

  • Hon GERRY BROWNLEE (National—Ilam): The National Party did not support that legislation when it was passed, technically today but in fact yesterday, and we did outline a number of reservations that we had, particularly around the use of section 11 and the sort of, I suppose you might say, scrutiny that would go on those provisions, because that's where the rubber hits the road, as it were. That's where the bill gives legal authority to the prescription that will be in those section 11 orders.

    We did make three recommendations for changes by way of Supplementary Order Paper. They weren't picked up because the Government actually saw the worth of those proposals, and one of those proposals was this three-month, 90-day sort of review. So we think that that's not a bad sort of thing to do. What we would be interested in, though, is: why the Finance and Expenditure Committee, when the Parliament has already set up a COVID-19 committee specifically to look at legislation that relates to the crisis? It would seem to me that that would be the right place to send it, and it's my intention at the end of my contribution here to move an amendment to the motion that's on the Table. For the sake of making things a little easier, regardless of what a result might be, my amendment would simply be that the scrutiny that's being sought in this motion—that it be referred to the COVID committee as opposed to the Finance and Expenditure Committee. I see the clerk doing his best to try and decipher what I've just said and put it into a form that the House can consider.

    Look, it is important that these section 11 notices are scrutinised, and I think one of the things that will give the public more confidence about how things are unfolding, as it's likely that we see less and less incidence of new cases but still find that there is a degree of restriction on civil liberty, is if they know that there is going to be an ongoing look at those restrictions with a final recommendation inside that 90-day period to the Government. I could stand here and say, well, this is the Government feeling the heat of criticism from outside of the place; that, I think, in the circumstances, might be a little churlish, but I can't help thinking that it might be a little bit at play.

    So, Madam Speaker, with that, do I need to state what my amendment is, or has the clerk perhaps got it in a form that might be useful enough?

    ASSISTANT SPEAKER (Hon Ruth Dyson): I think members are clear. The documentation will be able to be done. Are you going to move the amendment now?

    Hon GERRY BROWNLEE: I am going to move the motion currently in the hands of the clerk—

    ASSISTANT SPEAKER (Hon Ruth Dyson): OK, the clerk will get it into your hands.

    Hon GERRY BROWNLEE: —and under social distancing, I've got some difficulty in getting it to a point—

    ASSISTANT SPEAKER (Hon Ruth Dyson): The Rt Hon David Carter is coming to your rescue.

    Hon GERRY BROWNLEE: The Rt David Carter has clearly got himself now well qualified for a post-parliamentary job here in Parliament.

    I move, That the motion be amended by replacing "Finance and Expenditure" with "Epidemic Response Committee".

    ASSISTANT SPEAKER (Hon Ruth Dyson): Excellent, and you just have to sign it and table it.

    Hon GERRY BROWNLEE: Thank you very much, and I'll affix my signature if I can find a pen. Now, look, don't blame me for being disorganised. The Government only came down to the House—I should explain to those who are watching—

    ASSISTANT SPEAKER (Hon Ruth Dyson): Your amendment will not be lost because of lack of documentation. David Seymour's seeking the call, so you've got plenty of time.

    Hon GERRY BROWNLEE: The point is, the Government only came down to the House with this literally in the last 10 minutes, so it's not unusual that we're just scrambling slightly, because they're scrambling a lot.

    ASSISTANT SPEAKER (Hon Ruth Dyson): No, no, your amendment will not be lost; don't worry.

  • DAVID SEYMOUR (Leader—ACT): I rise in support of the initial motion and the amendment to it. It's certainly the case that the urgently passed legislation was extraordinary, that the powers it introduced were extraordinary, and the sense of fear and anxiety that it has put through New Zealanders—who now understand what it means, that the police theoretically can now warrantlessly enter your home if they suspect you're having a birthday party with 11 kids present—is palpable, and it's being talked about up and down New Zealand. I think the idea of having a continuous select committee process rather than a 90-day review—bearing in mind that in 90 days, Parliament will no longer be sitting, having adjourned for the election, all going well—is a good idea. That 90-day review, which would be extended beyond 90 days in this instance, is inadequate. Having a sense of continuous monitoring by a select committee is the right way to do it.

    In addition, I think it's absolutely the case that sending it to the Epidemic Response Committee—as proposed by the Hon Gerry Brownlee —is the right thing to do. Because, as you've just heard from Michael Wood —you know, politics is filled with chameleons and just sometimes you see a flash of their true character, and Michael Wood just gave us one of those flashes—the Government can't be trusted with anything other than eternal vigilance. His true character is that he'll get away with whatever he can. That's his moral compass, and that's why it's critical that the Epidemic Response Committee—which is chaired by a member of the Opposition and has a majority of Opposition MPs—is actually able to be scrutinising the exercise of executive power under this bill: because you can't trust the current lot in their entirety.

    So I hope that the motion succeeds. Bringing some sort of select committee, I guess, authority into this is critical. But sending it to the Epidemic Response Committee, where we're able to have an oversight which has some Opposition dominance, is arguably even more critical. Then we know that this won't be just a rubber stamp and, effectively, a marketing exercise on behalf of the Government, but actually a representation on behalf of the non-executive part of Parliament, on behalf of the people, holding this power to account.

    So I think it's a very commendable motion from the Hon David Parker, a very commendable amendment from the Hon Gerry Brownlee. I think that this motion and amendment should both pass, and I think people up and down New Zealand will be very happy to see that happen. Thank you, Madam Speaker.

  • Rt Hon DAVID CARTER (National): Madam Speaker, I rise to take a very brief point on the motion and to speak to the amendment that's been advanced by the Hon Gerry Brownlee. I do this in an attempt to point out to the Minister, particularly, the workload that the Finance and Expenditure Committee is currently under. We have, from memory, three pieces of legislation which we're working on, and as an example of the programme next week—being a recess week—the Finance and Expenditure Committee has already resolved to meet on Monday next week, on Tuesday next week, on Wednesday next week, on Friday next week, and on the following Monday. So I think the Minister needs to be fully aware of the workload that's been presented to that committee with the current legislation, and in asking it to now accept another role that could adequately be done by another special committee, the Epidemic Response Committee—I genuinely ask him to consider that in light of the workload to this House that's before the Finance and Expenditure Committee.

  • MICHAEL WOOD (Labour—Mt Roskill): Thank you, Madam Speaker . Prior to David Seymour speaking, I wasn't planning on taking a call in this debate, but something motivated me during the course of his speech. I'll stay away from the personal comments, because I think we can all be a little bit bigger than that in the House today, but I did want to address the importance of this motion.

    There's been quite a bit of heat and light, in the House but also more broadly this week, in terms of the COVID-19 Public Health Response Act 2020 , and, to a great degree, members on this side understand that. We're living in extraordinary times, and we accept and understand the fact that some of the powers included in that Act are powers that we would not wish to ordinarily see operating, both in respect of the powers that Ministers receive under the Act and the powers of agencies such as the police. There are sound reasons for that, which are canvassed in the debate about the bill, in order that we might ensure the public health of New Zealanders and that we don't have the deaths and massive disruption of a further outbreak of COVID-19 .

    But the point I want to make is that for members on this side of the House—who do take seriously the questions of the civil liberties of New Zealanders, as I think all members of the House do—this is a serious and genuine proposal in order that there might be appropriate oversight of that piece of legislation and the powers that it allows. And I just acknowledge members in the House who seem to, I think, have gracefully responded to that. I can envisage that all members of the select committee to which this inquiry is referred will engage in that seriously. I do think it's appropriate that the bill is referred to the Finance and Expenditure Committee . It's a large committee that includes all members from around the Chamber . It has significant expertise. It works well together as a committee.

    I want to specifically respond to the point that Mr Carter made, which was a reasonable point to raise, but I think it's easily dealt with. Yes, we understand the Finance and Expenditure Committee is a busy committee, but, actually, sending this piece of work to another committee doesn't particularly solve that problem. It's still work that has to be done by members of this House. It doesn't subtract or add anything different depending on the committee that it goes to. But it will, in fact, for both, particularly the National and Labour and Green and New Zealand First parties—most parties around the Chamber—create considerable difficulties to be having to schedule members to be attending another select committee in addition to busy committees like the Finance and Expenditure Committee. I might also just gently note that one of the reasons that the Finance and Expenditure Committee is particularly busy next week is because leave was denied for it to meet yesterday, but that's a little bit by the by.

    So I just want to leave members with the assurance—certainly from members from my party and I think from other members on this side of the House—that we put forward this motion in good faith, because we think it is fair and reasonable that there is parliamentary oversight and consideration of these issues, and that if the motion is successful in referring this inquiry to the Finance and Expenditure Committee, that good faith will extend through to the way that that committee operates in terms of its oversight of this inquiry. Thank you, Madam Speaker.

  • Hon TIM MACINDOE (National—Hamilton West): Thank you, Madam Speaker. I won't take a long call either, because it's encouraging to detect that there is general consensus for the spirit of the motion that has been brought to the House by the Attorney-General. But as the Hon Gerry Brownlee noted a short time ago, we wouldn't have known that we were going to be having this discussion even 15 minutes ago, because we were totally unaware of the motion at that point and therefore there's been no opportunity for the parties to have a discussion, as often happens outside this Chamber, to reach agreement on some of these finer points, and in particular as to where the responsibility for the scrutiny in a select committee should lie. And I thank the Rt Hon David Carter for his intervention. I think it's utterly disingenuous for Michael Wood to say that the only reason that the Finance and Expenditure Committee is so busy is because leave was denied for a meeting one day, yesterday—

    Rt Hon David Carter: We met twice yesterday; he's wrong.

    Hon TIM MACINDOE: They met twice yesterday, so it's even more disingenuous. The fact of the matter is, as Mr Carter has noted, that particular committee will be meeting—I think he said—four days in the next week, which isn't even a sitting week of Parliament. So that shows that they are extraordinarily busy and it would not be appropriate for such a serious responsibility as this to be put in their direction.

    I am speaking as the shadow Attorney-General. The National Party opposed this bill as vigorously as we could in the very short space of time that was available to us. We hadn't seen the bill—and even then it was in a draft embargoed form—until Monday night. We were debating it the following day. It was enacted the day after that. There was no select committee process. That is always a matter of concern whenever any bill is being considered, but particularly one which does attack the civil liberties of New Zealanders, one which gives the police powers without warrants to enter private dwellings, and the like. So this is not a minor issue. It's all very well for Mr Wood to suggest that his party is a defender of civil liberties; they certainly weren't on that occasion.

    I'm indebted to David Seymour, the ACT Party leader, for pointing out while he was speaking that in fact the Finance and Expenditure Committee does not have permanent representatives from all the parties in the Parliament. So I think that is a very important reason also for endorsing the amendment that has been moved by the Hon Gerry Brownlee for this bill to go to the Epidemic Response Committee.

    But, of course, there is another matter. The Finance and Expenditure Committee of Parliament has a Government majority. The Epidemic Response Committee was set up, because Parliament was being suspended, to ensure that the Opposition could carry out its very important constitutional function to hold the Government to account. And it remains in place because it's considering COVID-related legislation that has been dealt with. We are talking about a COVID-related bill here in this particular motion, and therefore I would suggest to all members that not only should we support the overall spirit of the motion for the bill to be able to have scrutiny but that it must go to the Epidemic Response Committee because that is chaired by the Leader of the Opposition. It has conducted itself very responsibly and, I think, as consensually as possible during the process of the lockdown.

    I just want to close by making the point that members of Parliament have been receiving a huge volume of correspondence, phone calls to our offices, text messages, social media posts, and so on, because many people were opposed to the passage of the bill. They were very, very concerned that there was going to be no select committee process. Therefore, this, at least belatedly, gives us the opportunity for select committee scrutiny. But also, many have pointed out that they only heard about it when it was a fait accompli . Because there was so limited opportunity for the media to cover this issue, they simply didn't know that it was happening, and now they are saying, " Good Lord! Has a democratic country like New Zealand passed a bill of this nature?" We've had that debate; I'm not relitigating that one now. But I am strongly urging members of this House to support the amendment of the Hon Gerry Brownlee to ensure that the committee that can deal with this, that has been set up—the Epidemic Response Committee—can do its work appropriately. And then we will support the scrutiny that the Attorney-General is calling for.

  • Hon DAVID PARKER (Attorney-General): Speaking to the amendment, I've only a few points to make. Parliament is no longer suspended. The Business Committee agreed to the creation of the COVID committee while Parliament was suspended, while there wasn't question time, and while there wasn't parliamentary scrutiny of executive action, and all of those events have now passed. The other point I would make, in correction of what the member who just took his seat, Tim Macindoe, said, was he said the "powers" of police to enter a dwelling house . It's not correct. There is only one power to enter a dwelling house, and that is breaking up a gathering—

    Hon Tim Macindoe: It's splitting hairs, David.

    Hon DAVID PARKER: Well, it's not splitting hairs, because the prior power that was already in force, prior to this latest bill narrowing the powers, had much broader powers of warrantless entry into a dwelling house. Indeed, one of the comments that I have seen since that bill was passed was that the now narrower power of the police to enter to break up a gathering—i.e., a party—is not much different to the power of a council officer to go into a party and take a stereo. I have nothing else to add.

  • A party vote was called for on the question, That the motion be amended by replacing "Finance and Expenditure" with "Epidemic Response Committee".

    Ayes 56

    New Zealand National 55; ACT New Zealand 1.

    Noes 63

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

    Amendment not agreed to.

    Motion agreed to.

    The House adjourned at 1.21 p.m. (Friday)