Unbridled Power? Executive Powers in Times of Crisis
By Emilia Sullivan
On the 25th March at 12:21pm, the Jacinda Ardern-led Labour Government declared a state of emergency. With cases of COVID-19 steadily rising, New Zealand entered a phase of extensive executive power, previously only seen during the recovery phase of the Christchurch earthquakes. In doing this, the executive and its advisory committees were given “all of the legislative means possible, all the enforcement powers, all the tools [needed]” at their disposal in the fight against the deadly pandemic.[1] So what does this mean for New Zealanders? Under these emergency powers, what can and cannot the Government do?
The 1951 Waterfront Dispute
In 1951, New Zealand saw the largest labour dispute of its history, when 22,000 waterside workers became fed up with their low salaries and poor working conditions and went on strike. Fearing an economic collapse as a result of the strike, then-Prime Minister Sidney Holland enacted emergency legislation in the form of the Public Safety Act which would allow the police to gain broad and far-reaching powers.[2] Law enforcement were allowed to detain anyone involved in a strike, incited others to be part of a strike, or published material that encouraged resistance.[3] On top of this, the press was heavily censored, allowing Holland to enforce these measures with little civilian pushback. The legislation enacted during this dispute was arguably the most stringent and draconian the country has ever seen, so how and why was it allowed?[4]
The tensions at the waterfront arose at a time when New Zealanders were clouded by the climate of cold war suspicion. This led to different parties in the movement denouncing others as Nazis, Communists, traitors and terrorists. Prime Minister Holland took advantage of these fears, establishing a quasi-police state to prevent the workers from descending into full-blown anarchy.[5]
The Civil Defence Emergency Management Act 2002
In modern times, however, the bar for invoking emergency legislation by way of declaring a state of emergency has risen. The Civil Defence Emergency Management Act (CDEMA) was enacted by the Helen Clark-led Labour Government in 2002, and set out a strict, 3-pronged criteria. In order for a state of emergency to be declared, s 4 of the CDEMA states that the circumstances must (a) arise as the result of, including any natural or biological disaster, failure of a crucial utility or a warlike act; (b) threaten the safety of the public or property; and (c) cannot be dealt with by the ordinary response of emergency services.[6]
Outlined in s 84(2) of the CDEMA, the Minister of Civil Defence is granted a broad power of direction when a state of emergency is declared, or one is imminent. This power permits the Minister to direct any person to perform or to cease performance of any function, duty or power conferred on that person under the Act.[7] These powers include evacuation of private and public premises, closure of roads and public places, inspection and seizure of property, and the broad right of constables to enter private property by force should it be “reasonably necessary”. While the standard in the latter power is necessity, not all of these powers require this standard. Many of the powers conferred on the minister need only be ‘expedient’, which is a lesser standard than necessity. A necessity is an indispensable requirement, whereas an expedient act is “advantageous” or “fit, proper; suitable to the circumstances of the case.”[8] This poses problems for the minister, as they must decide whether, in the perspective of the person directed to exercise the power, the exercise of this power is essential, required or indispensable in the given circumstances.[9]
The Execution of Emergency Powers Following the Christchurch Earthquakes
The 2010 Christchurch Earthquake saw the Government exercise unprecedented levels of executive power. Minister in charge of the Christchurch rebuild, Hon. Gerry Brownlee, was granted sweeping powers that a group of law professors described as a “dangerous move” that “[abandoned] established constitutional values and principles”.[10] The Canterbury Response and Recovery Act 2010 was passed unanimously by Parliament, and allowed for the minister to act with little legislative oversight as conferred in s 6 of the act, which says that an Order in Council can be made to “grant an exemption from, or modify, or extend any provision of any enactment.”[11] As well as being given the power to modify existing legislation, s 6(3) of the act states that “the recommendation of the relevant Minister may not be challenged, reviewed, quashed, or called into question in any court.”[12] This could potentially allow for unpopular legislation to be pushed through under the guise of urgency, without the repercussion of judicial review.
Although s 6(2) of the act outlines that the minister must “take into account the purpose of this Act”, it still allows for a wide range of legislation to be modified, even if it has no relevance to the earthquake recovery. For example, under the powers delegated by the act, Brownlee could legally remove income tax on the rich, strip any person of their New Zealand citizenship or even make murder legal, with the only requirement being that the minister take into consideration purpose of the act whilst legislating. While these are just hypothetical scenarios, it proves how, if placed in the wrong hands, this act is an opportunity for unchecked executive power to run rampant. While enacted with good intentions, it set a potentially dangerous precedent for future parliaments to legislate with few checks and balances.
The overarching reason for the enactment of this broad act was to ensure that any necessary legislation that would aid in the recovery effort following the earthquake could be done with minimal constraints, thus hastening the response and allowing Cantabrians to return to normalcy sooner. When looking at the legislation from a pragmatic point of view, it was a logical step for the executive to make in order to expedite the recovery efforts. It would not be fair to those suffering from the repercussions of the earthquakes if necessary legislation was held in the long and tedious legislative process. It could possibly have led to people hesitating in potentially dangerous situations in fear of breaching the law, or delayed acting until they had obtained relevant legal advice or an indemnity.[13]
The Executive Powers of COVID-19
The COVID-19 outbreak sent New Zealand and the rest of the world into an uncharted territory that required the executive to act swiftly and strongly to prevent mass casualties. By declaring a national state of emergency, the realm in which the executive branch can act in response to the pandemic was opened, specifically with the invocation of four specific pieces of legislation.
The Immigration Act 2009 allows the executive to control and regulate New Zealand’s borders. In all circumstances, the Minister of Immigration can issue orders that determine who receives entry into the country. Section 22(6)(a) of the act stipulates that officials may determine eligibility to enter the country based on factors such as character, sponsorship and health.[14] In the case of COVID-19, the minister first implemented a strict 14-day self-isolation order for all those entering the country as a first step in preventing the spread of the virus in New Zealand. As the disease worsened and the number of community-transmitted cases increased, the minister, under this act, closed the borders to all foreign nationals, with the exceptions being the immediate families of individuals with New Zealand residency or citizenship.[15]
The Health Act 1956 saw the classification of COVID-19 as a “quarantinable disease”, meaning that broad powers are then given to public health officials delegated by the director general of health, Dr. Ashley Bloomfield. These powers, as per s 70 of the act, include the right to isolate, quarantine and disinfect persons who they believe are at a reasonable risk of harbouring or coming in contact with COVID-19.[16] This also allows for these delegated officials to call on the powers of police, as they are authorised to do anything reasonably necessary (including the use of force) to enforce these measures, with the risk of arrest, prosecution, fines and imprisonment if the regulations are not followed correctly. The Health Act also allows for the closure of all premises, with the exception of private residences, as well as forbidding unnecessary travel.
The Civil Defence Emergency Management Act (CDEMA), as discussed previously, has the broadest and farthest-reaching powers of any act invoked during this pandemic. The declaration of a state of emergency under the CDEMA also triggers the National Civil Defence Emergency Management Plan 2015, which delegates roles to specific agencies, which includes central and local government, lifeline utilities, emergency services and non-government organisations.[17]
Lastly, the Epidemic Preparedness Act 2006 allows for the Prime Minister to issue an epidemic notice if that is recommended by the Director-General of Health, with the unanimous agreement of the Ministry of Health, and if the Prime Minister is satisfied that the effects of an outbreak of COVID-19 are "…likely to disrupt or continue to disrupt the central government and business activity in New Zealand (or stated parts of New Zealand) significantly".[18] The Act also allows for the use of parliamentary urgency by the executive in order to amend primary legislation that would aid in the response to diseases such as COVID-19. This means that Parliament’s usual lawmaking procedures are allowed to be bypassed should it be necessary. The only exceptions to this urgency mechanism are constitutional laws such as the Constitution Act 1986, the Electoral Act 1993, and the New Zealand Bill of Rights Act 1990. In the event that an immediate legislative modification order is proposed, they are able to be disallowed by Parliament within 6 days of its invocation, therefore they are subject to additional scrutiny. These modification orders can also be subject to strict conditions and can make compliance with the requirement or restriction non-compulsory.[19]
Conclusion
As of the 27th of April, 2020, New Zealand’s strictest lockdown measures have been lifted as the nation transitions into level 3, which allows for certain schools to be reopened, drive-through food establishments to operate and small-capacity funerals and weddings to be held. After consecutive days of reporting zero new cases, the Government is satisfied that New Zealanders are ready to ease back into normalcy. The transition from level 3 to level 2 will give the country the freedom to congregate once again, albeit with strict regulations on the amount of people allowed to be gathered at any time. While the long-term economic and social impacts of COVID-19 are not yet known, New Zealand’s proactive, rather than reactive approach to the disease is likely to put us in a better situation than other countries who delayed the implementation of the same strict measures.
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Featured image source: Photo by Leroy de Thierry on Unsplash
[1] Jacinda Ardern “State of National Emergency declared to fight COVID-19” (press release, 25 March 2020).
[2] Public Safety Conservation Act 1932, s 3.
[3] The Waterfront Strike Emergency Regulations 1951, s 4.
[4] Andrew Geddis, “Parliamentary government in New Zealand: Lines of continuity and moments of change” (2016) at 99–118.
[5] Lawrence Jones, “From Fretful Sleepers to Juice Extractors: Versions of the 1951 Waterfront Dispute in New Zealand Writing, 1952-1986.” (1994) at 148.
[6] Civil Defence Emergency Management Act 2002, s 4.
[7] Section 84.
[8] Oxford Shorter English Dictionary (6th ed.), at 898.
[9] Matthew J. McKillop, “Emergency Powers Of The Emergency Powers Of The New Zealand Government: New Zealand Government Sources, Limitations, And Sources, Limitations, And The Canterbury Earthquake” (2011) at 11.
[10] Greg Belton-Brown, “Revolution or Evolution? The Response of the Law to Earthquakes in New Zealand 1848 - 1948” (2012) Canterbury Law Review Volume 18 at 214.
[11] Canterbury Earthquake Response and Recovery Act 2010, s 6(1).
[12] Section 6(3).
[13] Sarah Kerkin, “Earthquake Recovery Legislation: Learning from Experience” (2018) Policy Quarterly Volume 14 at 51.
[14] Immigration Act 2009, s 22(6).
[15] Henry Cooke “Coronavirus: Government shuts borders to all but citizens and residents” (19 March 2020) Stuff <stuff.co.nz>.
[16] Health Act 1956, s 70.
[17] National Civil Defence Emergency Management Plan Order 2015.
[18] Epidemic Preparedness Act 2006, s 5(1).
[19] Section 12(5)(a).