By Ling Yee Wong

Legal context

The Government’s legal basis for exercising its power during COVID-19 Alert Levels 3 and 4 is currently being questioned in court. Briefly, the issue in dispute is whether the Government was properly granted the power under the Health Act 1956 to make people stay at home. Professor Claudia Geiringer from Victoria University in Wellington’s Faculty of Law called this “the most extensive coercive powers ever to be exercised in this country’s history”.

Regardless of the legality of Government’s power over the last two months, Parliament has just granted similar powers to order people to stay at home to contain COVID-19 to the Minister of Health and Director-General of Health. These are granted by the COVID-19 Health Response Act 2020, passed on the 13th of May, at the tail end of the Alert Level 3 lockdown.

What powers are granted to whom, in plain English

One of the most important sections in the Act is Section 11, which lays out the scope of the power given to the Minister and Director-General. The power given under Section 11 includes orders limiting the liberty of people (but not a specific person) normally asserted in the Bill of Rights Act 1990. These include liberties such as freedom of movement, freedom of association, and freedom of assembly. This Act essentially gives the Minister and Director-General the power in future to do exactly what the Government did during the Alert Level 3 and 4 lockdowns.

The enforcement of Section 11 orders allows, for example, the police to enter private homes without warrant if they have reasonable grounds to believe there is a gathering against a Section 11 order. Normally the police can only search private homes without a warrant if they reasonably suspect the homes have drugs or weapons. So, this Act essentially extends police power compared with Levels 3 and 4, when the police could merely arrest or caution people violating lockdown in public places. In one case, the police entered a house to arrest people partying during lockdown, and it is not clear if they had a warrant to do so.

There are a number of safeguards to exercising Section 11 powers. This Act has a sunset clause, which means that it will definitely expire in two years’ time, but can expire in 90 days if the Parliament allows it. This Act also specifically failed to mention that Section 11 orders are beyond the authority of the courts, unlike in another infamous piece of emergency legislation, the Canterbury Earthquake Recovery Act 2010 (CERA). That means the court can judicially review whether any Section 11 order is legal, in particular, whether such order contravenes the Bill of Rights Act 1990.

COVID-19 public health response around the world

Regardless of the legality of the lockdown during the past two months, New Zealand has been successful in largely eliminating community transmission of COVID-19. As of 14th May, New Zealand had no new case for three days in a row. Our strategy of strict lockdown has been recognised as a success in the widely-respected Lancet scientific journal.

Internationally however, New Zealand is not the only success story. There are two notable successes in Asia: Taiwan and South Korea. Both have liberal democratic governments and largely avoided lockdown in favour of vigorous testing, social distancing, contact tracing, and mask-wearing. Still, South Korea has an extremely intrusive contact tracing and warning system. So lockdown, and the necessary coercive power to enforce lockdown, is not the only strategy to reduce or eliminate COVID-19 infection.

On the other hand, in the United States, protesters rallied against local government lockdown orders, claiming violations of their freedom, while meanwhile the numbers of people with the virus was overwhelming hospitals in New York. One notable incident in Michigan state legislative chamber saw armed people trying to enter the chamber in protest of lockdown. In other countries that particular incident could easily have been considered a coup! Another strand of argument against lockdown, also popular in USA, is that the lives saved by the lockdown extract too high a price on the economy. The price to pay to save working people from being infected will be borne by future generations, having inherited a poorer economy as a result of lockdown, or so the argument goes.

Is lockdown worth it? It’s not for this Act to say

COVID-19 is extremely infectious, more deadly than normal flu, and may be transmitted without the carrier showing symptoms. Therefore COVID-19 will not be eradicated until there is an effective treatment or vaccine. So far we have neither. While New Zealand has largely eliminated COVID-19 for the time being, there may well be a second and third wave of infection.  The COVID-19 Public Health Response Act 2020 is the Government’s response to prepare New Zealand for the long and uncertain road ahead. That much is clear from the purpose section of this Act.

However, as we have seen internationally, lockdown is not the only solution to containing the spread of COVID-19. In addition, the argument against lockdown, that it strips away civil liberty and economy, is not without merit. Going forward, there is genuine debate to be had about finding the right balance between saving lives, civil liberty, and the economy, as Emilia Sullivan showed in a previous article for EJP. Are there less intrusive but practical alternatives to lockdown based on overseas evidence, such as mask wearing? Will the New Zealand public accepts such measures? Is robust contact tracing enough to stop the spread based on medical evidence? If so, how robust must it be?

Unfortunately, New Zealanders are not being given a chance to have this debate, since the Act has already been passed into law. In two days no less, from introduction to the House to third reading. This is lightspeed in comparison to the normal process of a bill going through a select committee for about six months. The select committee process allows the public to write submissions and have their say on proposed legislation. Many controversial and not-so-controversial bills have passed through the normal select committee process. This strengthens the democratic credentials of any particular piece of legislation, in addition to being approved by the people’s representatives in the form of democratically elected Members of Parliament. (For a deeper dive on the accelerated legislative process under urgency, see this previous article by Alexander Campbell).

Most importantly, now is the perfect time to have this robust debate, when New Zealand has largely beaten the spread of COVID-19. We have seen how volatile it is in USA to have this debate while COVID-19 is still raging like wildfire. Lockdown these past two months has bought us the luxury of time to prepare for the next wave and to respond politically. It has bought us the time to have a calm, democratic debate on how New Zealand as a whole should allow the Government to limit our freedom and prosperity in order to save lives.

Conclusion

As noted by Professor Geiringer, the lockdown power the Government exercised in the past two months to contain COVID-19 is completely unprecedented and coercive, therefore such power (and then some) should not be given lightly. Not in a mere two days as was the case with this Act. In a liberal and democratic country such as New Zealand, there should be a debate on how much civil liberty and prosperity we should trade to save lives, by having it go through select committee. The debate needs to involve not just people’s representatives but the people themselves. That is what is sadly lacking with the passing of this Act.

Update: This article is written on 14th May. On 15th May the Government has announced that a select committee will receive public submission on this Act and report back to Parliament in 90 days. The argument of this article still stands: this Act should have been through the select committee in the first place, before the coercive powers are in place. The ensuing public debate should have happened before the Act is passed, not afterwards, in a democratic society.

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