New legal framework for Alert Level 2 to be introduced today

While the Government claims that restrictions under Alert Level 4 and 3 were legal they are still introducing a bill into Parliament today aimed at providing a new law “providing a legal framework for Covid-19 Alert Level 2”.

They say they don’t want to rely on a National State of Emergency for the lower level, but they didn’t back in March when we first went into lockdown in Marchh. See Prime Minister’s statement on State of National Emergency and Epidemic Notice

Having considered the advice of the Director Civil Defence Emergency Management, the Minister of Civil Defence declared a State of National Emergency for the whole of New Zealand under section 66 of the Civil Defence Emergency Management Act 2002 on March the 25th 2020 at 12.21pm.

Also, under section 5 of the Epidemic Preparedness Act 2006, yesterday I issued an Epidemic Notice, nationwide, to help ensure the continuity of essential Government business due to the unprecedented effects of the global pandemic, COVID-19, which is likely to significantly disrupt essential governmental and business activity in New Zealand.

This Epidemic Notice came into effect today, the 25th of March 2020, just after midnight and it will remain for three months with ongoing review, and from which, now further Epidemic Management Notices and Epidemic Modification Orders can be given…

We went to Alert Level 2 before that, on 21 March, and then to Alert Level 3 on 23 March, before the state of emergency was announced and before the Epidemic Notice was issued.

Things had to be done urgently, but they also should have been done legally.

From the Beehive: Covid-19 response: New legal framework to be debated tomorrow ahead of Alert Level 2

The Government intends to pass the COVID-19 Public Health Response Bill through all stages on Tuesday 12 May so that it can be enacted by Wednesday 13 May.

“As I announced on Friday, the changes will ensure controls on gatherings of people and physical distancing are still enforceable,” Attorney-General David Parker said today.

Enforceability to date has relied on the Epidemic Notice, the Health Act and the Civil Defence Emergency Management Act.

As shown above, apparently not under the Civil Defence Emergency Management Act for the first level 2 and 3, and also not under the Epidemic Notice.

“There will be fewer restrictions under Alert Level 2 but those remaining still need to be enforceable. We don’t want these narrower controls to rely on a National State of Emergency. “

This suggests that the first restrictions under Alert Level 2 and 3 were not legally enforceable.

“However, the regulatory backup provided by the new law allows us to address behaviour at Alert Level 2 that is particularly harmful to the public health objective, and to demonstrate to those who are complying voluntarily that non-compliance will not be tolerated,” he said.

“We need the legislation in place before Level 2 starts.

“The Government has assessed there is not time for the usual select committee process but we do want a necessarily brief opportunity for comment on the bill. Therefore we have released a disclosure draft of the Bill to the Opposition and experts, and have invited comment on it by 10am, Tuesday 12 May.

Parliament re-opened last week, and they should have foreseen the need before the last minute (last day). Perhaps the judicial review filed in the High Court last week has prompted an attempt to make the lower alert levels legal.

“I reiterate there has been no gap in the legal underpinning or in the enforcement powers under the notices that have been issued under Level 3 and Level 4. This bill does not retrospectively change them.”

The dates above suggest otherwise, and it also puts into further question the legal underpinning of the enforcement powers for Alert Level 2 (and 3) back in March.

It’s good to see them getting the legal side of the lockdowns tidied up, but Parker shouldn’t have claimed it was fine from the start.