Public Health Response Bill passes 3rd reading

The Public Health Response Bill passed it’s third and final reading in Parliament yesterday by 63 votes to 57. Labour, NZ First and Greens voted in favour, National, Act and Jami-Lee Ross voted against.

David Parker summarised the bill:

The COVID-19 Public Health Response Bill will create a bespoke and fit for purpose legal framework to support the Government’s efforts to limit the spread of COVID-19 for a maximum of two years, less if COVID-19 is bought under control sooner.

This bill includes the necessary powers to enforce the alert 2 measures, and I thank the House for working together to pass this bill under urgency. We have adopted further protections suggested by the Opposition.

Passing this bill now is prudent as we move to level 2 on Thursday and into the next phase of our response to COVID-19. The Government’s strategy for COVID-19 and the efforts of all New Zealanders have so far curbed the spread of the virus and the potential devastation it causes.

The bill is necessary to continue our response to the unprecedented challenges of COVID-19. It will allow the Minister of Health to issue orders to give effect to public health measures, for example, to require the maintenance of social distancing, prohibiting gatherings of a specified kind, and requiring people to be isolated or quarantined in specified ways. The bill creates a framework for COVID-19 orders, not the orders themselves.

The Minister of Health must have regard to the advice of the Director-General of Health. The Minister of Health may have regard to decisions by Government on the level of public health measures appropriate, which may have taken into account social, economic, and other factors. The Minister of Health is required to consult with the Prime Minister and the Minister of Justice, who will both be concerned with the correct balance of any order, including civil liberties.

In opposition:

SIMON O’CONNOR (National—Tāmaki): I’d like to torpedo that boat. I want to bookend this speech with words from someone else who’s far more eloquent than myself.

He says, “… when human societies lose their freedom, it’s not necessarily because tyrants have taken it away. It’s usually because people willingly surrender their freedom in return for protection against some external threat. And … That’s what I fear we are seeing now.”

That’s been said by Lord Sumption, the English supreme court justice and judge, discussing COVID-19 only a few days ago. I agree with Lord Sumption that this is the most anti-democratic piece of legislation being put before this Parliament.

I repeat it again: it is anti-democratic. It is against the values of this democracy, this Parliament, our constitutional sovereignty. It is against the principles of law, and ethics.

Parker on one of the most contentious parts of the bill:

In terms of warrantless powers of entry under the bill…I observe that broader warrantless powers already exist under section 71 of the Health Act. I don’t have time to read the full suite of those powers, but they are listed at section 71A(1) and are broad. Section 71A(2) of the Health Act makes it clear a constable can enter a building—any building, which includes a private dwellinghouse—for any of those full suite of powers.

Clause 20 of this bill is narrower. A warrantless power of entry into a private dwellinghouse under COVID-19 is now limited to situations where the constable has reasonable grounds to believe the limits to gatherings have been breached. This power is, in effect, limited to breaking up parties flouting the rules on gathering size. The enforcement power is intended to limit contagion risks and to enable effective track and tracing if there’s an outbreak we need to get under control.

So don’t have rowdy attention seeking parties that appear to be crowded.

The bill was also criticised for being rushed under urgency through Parliament in two days when a primary aim was to curb individual freedoms. Greens were criticised for rubber stamping the Bill, with suggestions that if National was putting a similar bill through Parliament Greens would have protested loudly.

Marama Davidson:

 I will start by acknowledging where my colleague the Hon Peeni Henare just left off, which is that we have an understanding that the broad powers that have got us through alert levels 4 and 3, and now as we move into level 2, have been there because of the public health and wellbeing approach that we have put first in our Government response to COVID-19. Yes, this has absolutely restricted our movements and our freedoms, and that is because of the collective decision we have made to ensure that all people’s lives are cared for as much as we possibly could. We wanted to make sure that we had clear restrictions and guidelines on those broad powers as we move into level 2 so that we could understand how those powers are going to be applied, when and where, and how long they will last for.

What I want to acknowledge in my closing time is that—and my colleague Mr Henare also raised it—we understand that Te Tiriti is also at the forefront of the debates that are being had in our communities at the moment regarding this COVID-19 Public Health Response Bill.

A specific reference to marae was removed from the bill after protests on singling out Maori.

I want, as I did before the break, to assure people that, yes, we in this House do need to be accountable to monitor and review whose homes and communities and dwellings are entered into with warrantless entry; that we are keeping the data and record and reporting on those entries; that we review that reporting and that data at the newly agreed shorter review times, which I absolutely think are fantastic; and that we make it clear to the public that if the public health agenda of these broad powers are not being adhered to that there is power in this House to renege on those high orders that are being sought in this House; and that we absolutely must keep a check that the powers are being used for what they are set up to be used for, otherwise we will execute and exploit that power in this House to renege on that order that can be made.

It’s hard to work out what she is trying to get across there.

That is an extra step of accountability that was put into this bill as an example of trying to give better clarity and framework around applying these bills.

So I’m very pleased that we have been able to tighten up some of that stuff. It does not address all the valid fears and concerns. Yes, we are listening and we do need to take those on board and consider that in our ongoing monitoring and review and application of this legislation.

The full closing speech:


Hon DAVID PARKER (Attorney-General): I do want to put some important points down in my speech in a formal way, which is important at a stage 3 reading in respect of the future interpretation of this legislation. But before that, I do want to respond to Erica Stanford’s suggestion that we could have closed the border earlier. As the Minister of Justice interjected at the time, until less than a week before we closed the border there were about 5,000 New Zealanders—citizens, and permanent residents—returning every day, and it was not possible to put them in quarantine because you quickly run out of hotel beds.

The COVID-19 Public Health Response Bill will create a bespoke and fit for purpose legal framework to support the Government’s efforts to limit the spread of COVID-19 for a maximum of two years, less if COVID-19 is bought under control sooner. This bill includes the necessary powers to enforce the alert 2 measures, and I thank the House for working together to pass this bill under urgency. We have adopted further protections suggested by the Opposition. Passing this bill now is prudent as we move to level 2 on Thursday and into the next phase of our response to COVID-19. The Government’s strategy for COVID-19 and the efforts of all New Zealanders have so far curbed the spread of the virus and the potential devastation it causes.

It remains a precarious journey, but we have broken the chain of community transmission and reduced daily cases dramatically. There is as yet no vaccine and no cure for the virus, and our country must continue to act cautiously so that we maximise our prospect of avoiding or controlling its re-emergence to avoid the loss of life seen overseas, minimise economic damage, and prevent our health system being overwhelmed.

Unlike many other countries around the world, New Zealand is now in a position where it can restore many civil and economic freedoms—and we are. However, the current legal framework is not best suited for enforcing the necessary medium-term public health measures at level 2, where there is increased freedom of movement and more nuanced restrictions: for example, many more businesses can open, provided they take certain safety measures; and gatherings of people can be held, also providing certain precautions—limits on numbers and social distancing rules—are followed.

On this side of the House, we also believe more parliamentary oversight of level 2 and future COVID-19 measures is appropriate, which this bill introduces. We consider it necessary to pass this bill under urgency to help New Zealand to alert level 2 on Thursday, as every additional day is costing New Zealanders greatly, with economic costs and current limits to liberties prolonged. Delay, in our view, also puts at risk the social consensus which underpins the voluntary compliance which epidemic prevention measures rely upon. Enforceable rules to require the minority who flout rules are still needed.

The bill is necessary to continue our response to the unprecedented challenges of COVID-19. It will allow the Minister of Health to issue orders to give effect to public health measures, for example, to require the maintenance of social distancing, prohibiting gatherings of a specified kind, and requiring people to be isolated or quarantined in specified ways. The bill creates a framework for COVID-19 orders, not the orders themselves.

The Minister of Health must have regard to the advice of the Director-General of Health. The Minister of Health may have regard to decisions by Government on the level of public health measures appropriate, which may have taken into account social, economic, and other factors. The Minister of Health is required to consult with the Prime Minister and the Minister of Justice, who will both be concerned with the correct balance of any order, including civil liberties.

Clause 9(2) of the bill makes it clear that the Minister must be satisfied that a proposed section 11 order is appropriate to achieve the purposes of the Act. That links back to the purpose clause 4, which provides the purposes of the Act: “The purpose of [the] Act is to support a public health response to COVID-19”. Subclause (c) says, amongst other things, that the response is to be proportionate. As David Seymour said in earlier stages of the debate, the structure of the decision-making is better and creates more accountability, not less. He is correct, as were the legal experts who also called for ministerial responsibility for these important decisions.

The bill will give police and other authorised enforcement officials powers to enforce the orders and create a new enforcement regime for breaches of the orders. Those infringement notices don’t warrant—sorry—those breaches don’t always warrant criminal prosecution. The police will still exercise their discretion. They will rely mainly on education. But we will have a remedy short of prosecution, which has more serious consequences.

We’ve received feedback from other political parties and legal academics who had the admittedly time-limited opportunity to review an exposure draft of the bill overnight. At the committee stage important changes were made to the bill, some of which were in response to that feedback, so I thank them. The most significant change during committee stage was for the automatic repeal of the bill every 90 days or another period agreed by the House. Essentially, it needs to be refreshed every 90 days with the ability for that period to be longer—for instance, if it was just prior to the election. This is in addition to requiring every section 11 order, the equivalent of the former orders under section 70 of the Health Act, to be approved by parliamentary motion normally within 10 sitting days. The existing Health Act, which currently applies, has neither of these two protections.

Other important changes include clarifying that orders made allowing for premises to open only if specified measures are complied with, or orders prohibiting gatherings of a certain kind—that those don’t apply to Parliament or the courts. We’re clarifying that orders made under the Health Act will continue in force as if made under the bill and can be enforced as if an order was made under this bill. We’re clarifying, in terms of the matters the Minister may have regard to, any decision of the Government on the level of public health measures appropriate to—those are new words—respond to those risks of COVID-19. We’re clarifying that for the purposes of the bill, the range of people who can be enforcement officers will only include those employed or engaged by the Crown.

We’re removing any different treatment for marae in relation to powers of entry under the bill, noting, however, that we’ve added a requirement for the enforcement officer to report to the relevant marae committee if a power of entry was used. I note that marae were originally included to add greater protections, not take them away. However, we’ve listened to concerns from the Māori Council and others following our consultation with them and, accordingly, remove that reference to marae.

In terms of warrantless powers of entry under the bill, the last speaker was again wrong. I observe that broader warrantless powers already exist under section 71 of the Health Act. I don’t have time to read the full suite of those powers, but they are listed at section 71A(1) and are broad. Section 71A(2) of the Health Act makes it clear a constable can enter a building—any building, which includes a private dwellinghouse—for any of those full suite of powers. Clause 20 of this bill is narrower. A warrantless power of entry into a private dwellinghouse under COVID-19 is now limited to situations where the constable has reasonable grounds to believe the limits to gatherings have been breached. This power is, in effect, limited to breaking up parties flouting the rules on gathering size. The enforcement power is intended to limit contagion risks and to enable effective track and tracing if there’s an outbreak we need to get under control.

I note that the Human Rights Commissioner was mistaken in asserting there was no New Zealand Bill of Rights Act vet. There was and it was published. It concluded the power is proportionate. I normally have conducted New Zealand Bill of Rights Act vets, but because I thought myself conflicted by my role here in having can conduct of this bill, we requested the Governor-General to make the Minister of Justice the acting Attorney-General for this limited purpose of that New Zealand Bill of Rights Act vet.

I also repeat the powers in this bill a narrower than under the existing Health Act, and that the orders which trigger those powers will now be subject to more oversight mechanisms by this House, as I have already covered. I commend this bill to the House.

A party vote was called for on the question, That the COVID-19 Public Health Response Bill be now read a third time.

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.

Bill read a third time.

Handard of closing speechs 

Leave a comment

20 Comments

  1. Despite tweaks to the bill there are still concerns. 1 News: Concerns over police powers to search marae under new enforcement legislation

    Māori communities are deeply concerned that police may be able to search marae and homes without a warrant when the alert levels drop.

    After backlash from Māori leaders and communities, the government has removed a reference to marae from the legislation.

    But Prime Minister Jacinda Ardern said the reference to marae gave them extra protection.

    “What the Bill explicitly did was actually make sure that rather than marae being treated potentially as commercial premises, where there are wider powers, to actually narrow it and make sure they had the same protection as private dwellings”.

    “That was the intent so that there was no question and that they had that higher – there was that distinction in there. But after concerns were raised, there was no question that we would rather respond to that.”

    This morning (yesterday, before the bill passed), Māori-Crown Relations Minister Kelvin Davis said the reference to marae would be removed.

    Marae will now be treated the same as any other dwelling, which means officers can search marae without a warrant if they believe that someone is breaking the rules of the alert levels.

    Beforehand, officers could only search marae without a warrant if that entry was also necessary to give direction to stop any activity of non-compliance.

    Davis was not happy with the change.

    “Māoridom has to be careful what they wish for – that’s the problem. What this now does is it reduces the protections that were being afforded to marae… our intention was to give marae the best protection that we possibly could.

    “We have heard the concerns and we have listened to Māori who think that marae are being particularly targeted and we have made the changes.”

    However, Māori Council executive director Matt Tukaki – who pushed to have the word marae removed – said it needed to go.

    “The use of the word marae did not need to be there, it denotes a single race and it denotes a single culture”.

    Another amendment was made today to ensure a marae committee is notified after a warrantless search is carried out.

    That is hardly of comfort to the chair of Te Puea Marae in Auckland Hurimoana Dennis, who said the rules were over the top.

    “It sort of flies in the face of the relationships that the police and every other government agencies have with their local marae. Any sort of search should have been consensual. There really should have been no issue at all.”

    https://www.tvnz.co.nz/one-news/new-zealand/concerns-over-police-powers-search-marae-under-new-enforcement-legislation

    Reply
  2. NOEL

     /  14th May 2020

    I can see the warrantless entry getting up people who would in normal times not experience it. But reasonable grounds to suspect became I believe years ago.
    Reminds me of when neon lights under the car were a craze and teenagers would return home again hitching about cops pulled me over again.
    Don’t know how many of that generation lost their respect for the Police.

    Reply
    • Duker

       /  14th May 2020

      A council building inspector/swimming pool inspector or the dog pound can enter private property , along with RSPCA, without warrants.
      The Police can enter without warrants for drugs or firearms
      Repossessions , thats allowed for private agents

      Reply
  3. Corky

     /  14th May 2020

    Matt Tukaki:

    “The use of the word marae did not need to be there, it denotes a single race and it denotes
    a single culture”

    Ironies abound.

    Given Maori will be a major contributor to breaching gathering and association rules, is it any wonder the original draft was written the way it was?

    ”Essentially ( the bill), it needs to be refreshed every 90 days with the ability for that period to be longer—for instance, if it was just prior to the election.”

    In other words forever, if deemed necessary on the most spurious of reasons, especially if the sheeple forget such a law is in operation after a few years.

    Reply
    • Anyone using the word sheeple is showing their age ! 😀

      Reply
      • Corky

         /  14th May 2020

        Fools and blind followers never go out of fashion Your comment is testament to that.

        Reply
        • I am not the person using this extremely unoriginal and dated word.

          Or is your comment referring to yourself ? It seems highly appropriate to your way of thinking about the Right (as you see it) and such people as your hero Mike Hosking, the latte slurper with overgrown designer stubble decades after this was trendy, which to you show his ‘cultured’ urbanity.

          Reply
  4. Sam Sachdeva at Newsroom: Funeral fix and law concerns make tough day for Govt

    Taken at face value, the passing of the Covid-19 Public Health Response Bill was a success, giving the Government the legal framework it said it needed for New Zealand to move to Level 2.

    But that final victory only came after pointed criticisms from not just National MPs, but civil liberties and human rights groups like Amnesty NZ, the NZ Council for Civil Liberties and the Human Rights Commission.

    Of greatest concern was both the sweeping powers being granted to the Government – and Ardern in particular, with the Prime Minister granted the ability to bestow extraordinary powers to respond to Covid-19 – as well as the severely limited timeframe in which to scrutinise it.

    There was no select committee process at all, while the Opposition and legal experts were given barely 24 hours to review a draft before it went before the House.

    …But it is fair to ask, as many National MPs did, why the Government did not prepare and introduce such legislation weeks ago to allow for a truncated select committee process when it knew the country would eventually reach Level 2 and require such a new law (provided you take the Government at its word that it was not required to enforce Levels 3 and 4).

    https://www.newsroom.co.nz/2020/05/14/1171266/funeral-fix-and-law-concerns-make-tough-day-for-govt

    Reply
    • Duker

       /  14th May 2020

      Its an Omnibus Bill of around 100 pages covering everything under the sun.
      Weeks ago ? They probably only writing parts this last week.
      Does he think we have hundreds of law drafters just sitting around, when its more like a dozen .

      Reply
  5. Human Rights Commission deeply concerned about COVID-19 Public Health Response Bill

    “For weeks the Government has known that we would be moving to alert level 2. It has not allowed enough time for careful public democratic consideration of this level 2 legislation. There has been no input from ordinary New Zealanders which is deeply regrettable,” said Chief Human Rights Commissioner Paul Hunt.

    “This is a great failure of our democratic process. The new legislation, if passed in its current state, will result in sweeping police powers unseen in this country for many years.”

    The Human Rights Commission is strongly of the view that the legislation must include a provision to ensure those making decisions, and exercising powers, under the new law, will do so in accordance with national and international human rights commitments and Te Tiriti o Waitangi.

    “Given our concerns expressed to the Attorney General yesterday about the two-year sunset clause in the Bill, we are pleased to see that Parliament will be changing this to 90 days. However, given that the legislation encroaches on the civil liberties of New Zealanders we have serious concerns about whether the powers are proportionate.”

    “In times of national emergency sweeping powers are granted. There is a risk of overreach. Mistakes are made and later regretted. This is precisely when our national and international human rights, and Te Tiriti, commitments must be taken into account.”

    https://www.hrc.co.nz/news/human-rights-commission-deeply-concerned-about-covid-19-public-health-response-bill/

    Reply
  6. adamsmith1922

     /  14th May 2020

    Many unnecessary law changes here.
    Too much power to officials.

    Reply
  7. Reply
  8. Alan Wilkinson

     /  14th May 2020

    We are incompetent so we need a lot of power.

    Reply
  9. Maggy Wassilieff

     /  14th May 2020

    So without the full support of the Green Party this legislation would not have passed.

    Reply
    • Alan Wilkinson

       /  14th May 2020

      Yes. Greens go full socialist nanny state. That’s why I never joined them.

      Reply
    • Duker

       /  14th May 2020

      Without the law being passed we would have stayed at Level 3.

      Reply
      • The legality of Level 3 (and Level 4) is still up for debate and judgment.

        But they required a State of Emergency that Government thought made things legal, they wanted to drop the State of Emergency (which they have) so needed the law to try to make Level 2 legal (it most likely wasn’t when we first went into Level 2 and Level 3).

        Reply
        • Duker

           /  14th May 2020

          The substance of the legality of the national quarantine isnt under debate …its only around the fringes.
          Even the US accepts quarantine is constitutional from previous Supreme Court decisions, and its not even in the Constitution.

          Reply
      • Alan Wilkinson

         /  14th May 2020

        They couldn’t stay at level 3 or the country would have revolted.

        Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s