Covid-19 Public Health Response Bill ‘appears to be consistent’ with Bill of Rights Act – MoJ

The Covid-19 Public Health Response Bill is currently progressing through Parliament under urgency.

The Ministry of Health advice is that the Bill ‘appears to be consistent’ with the Bill of Rights Act.

We have considered whether the COVID-19 Public Health Response Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).

We have not yet received a final version of the Bill. This advice has been prepared in relation to the latest version of the Bill (PCO 22923/4.2). We will provide you with further advice if the final version includes amendments that affect the conclusions in this advice.

We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

It seems that Andrew Little is Acting Attorney General because the Attorney General, David Parker, introduced the Bill and someone else had to advise him on it.

Click to access COVID-19-Public-Health-Response-Bill.pdf

The Covid-19 Public Health Response Bill under urgency in Parliament

The Covid-19 Public Health Response Bill is currently progressing through Parliament under urgency. So far just the National Party has opposed the Bill.

The Bill gives the Police the legal ability to walk into anyone’s home without a warrant, so there are risks to civil rights and liberty.

It is being rushed under urgency to try to make the move to Level 2 tonight legal, but it leaves open the question about whether the first move to Level 2 in March may have been illegal.

David Parker:

“This bill creates a bespoke legal framework to support the Government’s future efforts to limit the spread of COVID-19 in New Zealand.

The bill will give police and other authorised enforcement officers clearer powers to enforce the orders, consistent with the graduated approach police have taken to enforcement to date. Those powers sit aside along voluntary measures, public health, and other guidance.

This bill creates a power to enter premises, a power to direct people, to stop activities that are in breach of the order, a power to close roads and public places, and a power to close businesses operating in breach of the rules for 24 hours. Clause 23 allows a constable to enter a private dwelling house without a warrant only if they have reasonable grounds to believe that people have gathered there in contravention of an order and entry is necessary to give a direction to cease the activity.”

Michael Woodhouse:

“I find myself in the situation of going, within an hour and a half, from commendation to condemnation for this piece of legislation—both in its process and in its executive overreach. I would go so far as to compare the Prime Minister to Rob Muldoon. She is Rob Muldoon with slogans and kindness.”

I am, frankly, astounded that a Government that purports to be open and transparent, to be kind, and to give the country, the public, the credit for the amazing work that they have done, still increases further and further into their freedoms and their lives.”


Attorney General David Parker introduced the Covid-19 Public Health Response Bill yesterday:

This bill creates a bespoke legal framework to support the Government’s future efforts to limit the spread of COVID-19 in New Zealand. This is designed to last for a maximum of two years although can be brought to an end earlier if the threat passes.

New Zealanders have been on a precarious journey combatting this virus. We’re not at our final destination yet, but together we’ve made extraordinary progress through the largely voluntary efforts of our people, who accepted the need for unprecedented actions to isolate ourselves in bubbles to cut off the chains of infection.

We went hard and we went early to fight a virus for which there is currently no vaccine and no cure. We know it can hide and spread through those with no symptoms, and around the world we’ve seen the devastation and loss of life it can cause, especially in aged care and in dementia units. We’ve negotiated difficult terrain and have broken the chain of community transmission.

In the meantime, we’ve improved our stocks and supply lines for polymerase chain reaction (PCR) test kits and reagents as well as personal protective equipment (PPE) supplies and distribution. We’ve ramped up testing and the quality and capacity of track and tracing. We’ve minimised the damage the virus would have otherwise done to our people and to our economy.

To date, restrictions at alert levels 3 and 4 were given legal effect by notices under section 70 of the Health Act, in conjunction with the state of emergency under the Civil Defence Emergency Management Act and the Economic Preparedness Act. To support alert levels 3 and 4, the Director-General has issued notices to close premises, except those providing essential services, prohibiting congregation in outdoor places, and require people to remain at home in their bubble except to access essentials and to exercise. These orders are lawful under the Health Act, and the restrictions proportionate to the scale of the COVID-19 threat.

I think there’s doubt about that, as pointed out here: New legal framework for Alert Level 2 to be introduced today

That said, some aspects of the Health Act do need to be modernised and adapted, and this is particularly true for the detailed level 2 measures, which are not well suited to the existing Health Act and Civil Defence Emergency Management regime. This bill provides new enforceable measures that don’t depend on a state of emergency being in force.

We went into Level 2 and Level 3 before the State of Emergency was announced in March.

The bill will give police and other authorised enforcement officers clearer powers to enforce the orders, consistent with the graduated approach police have taken to enforcement to date. Those powers sit aside along voluntary measures, public health, and other guidance.

This bill creates a power to enter premises, a power to direct people, to stop activities that are in breach of the order, a power to close roads and public places, and a power to close businesses operating in breach of the rules for 24 hours. Clause 23 allows a constable to enter a private dwelling house without a warrant only if they have reasonable grounds to believe that people have gathered there in contravention of an order and entry is necessary to give a direction to cease the activity.

We acknowledge that it is unusual—though not unprecedented—for a constable to have warrantless power of entry into a private dwelling house. This is due—the fact that it is unusual—to the high expectation of privacy that citizens have in these places.

The extraordinary risk posed by COVID-19—I will cover instances in later speeches; I haven’t got time to detail that now—and the fact that it can be spread readily in large social gatherings, whether in public or in private, justifies the power in these circumstances and the limits it places on rights.

There are safeguards in the bill so that a constable must report every time a warrantless entry power is exercised, summarising the circumstances and the reason why the power needed to be exercised.

This bill will create a new infringement offence regime. Some breaches will be dealt with as an infringement offence, and an intentional breach will be a criminal offence which may result in a fine or imprisonment on conviction. An infringement offence regime gives police another graduated step in their enforcement options where the breach is not serious enough to warrant criminal prosecution.

The bill also amends the Civil Defence Emergency Management Act 2002 to ensure a nationally consistent approach to the response and to management of risks arising from COVID-19, and to better deal with concurrent emergencies that are not COVID-19 but which might arise during the period of the COVID-19 response.

We believe this legislation is needed to appropriately continue our response to the unique and unprecedented challenges of COVID-19.

Simon Bridges in reply:

… it’s with regret that I say we have on this side of the House in the National Party, real concerns with this bill. You’ll hear from other members of National about, I am sure, civil liberty concerns—concerns with our freedoms as a people that have been long fought for—in the speeches and contributions. I want to simply place on record my concerns in two areas, really, but four for completeness: funerals, tangi; churches or places of worship; enforcement; and the length of time that this bill—or law, as it will, I think, become—applies for.

…this bill, in coming here, has had very limited scrutiny. There will be, as it becomes law, no select committee. It’s a case of, on this side of the House—I don’t know about the support parties in Government—us having it for less than 24 hours. I think it was Geoffrey Palmer who lamented this Parliament being the fastest lawmaker in the West. Dare I say it, to the members opposite, in recent times we have got it wrong; passing things that we didn’t even know we were passing. So the room for error in this bill, I suggest, is incredibly high, given the legal complexities.

Michael Woodhouse:

I find myself in the situation of going, within an hour and a half, from commendation to condemnation for this piece of legislation—both in its process and in its executive overreach. I would go so far as to compare the Prime Minister to Rob Muldoon. She is Rob Muldoon with slogans and kindness.

I’m old enough to remember carless days, wage and price freezes, reducing the road speed limit from 100 kilometres to 80 kilometres per hour — that’s right: SMPs — by an executive that road roughshod over this parliamentary process. Even they pale into comparison with the influence and executive fiat that is being exerted on this country by this bill.

I am, frankly, astounded that a Government that purports to be open and transparent, to be kind, and to give the country, the public, the credit for the amazing work that they have done, still increases further and further into their freedoms and their lives.

Let’s be very clear. If there was a question about whether the level 4 and level 3 lockdown was legally allowed under section 70 of the Health Act—and that is a question yet to be answered—then there’s no doubt that the sort of influence that the Government wants to have in level 2 is not. So if the Government wants to act in this way, it does need to pass legislation. But, as I said in my previous intervention, that is the very time when this place matters most, when the rule of law matters most, and where changes to that law need to be carefully thought through, well-considered, consulted on, robustly debated, and definitely not rushed through.

Now, the Minister of Health, very clearly says there is haste—understandable. But this Government has had three months. I think this Government did get legal advice that said that there was a question mark over their ability to act at level 3 and 4, and, clearly, they wanted to continue to impose themselves on New Zealanders’ lives under level 2 in a way that was entirely inconsistent given what we heard about what level 2 would look like. And so they’re going to pass that bill.

But not even the Minister of Health knows his own legislation, because he said in his speech that he will have to consult with the Director-General of Health. Actually, the bill doesn’t say that; it says quite the opposite. At subclause (2) of clause 9, on page 5, when making a section 11 order, “Nothing in this section requires the Minister to receive specific advice from the Director-General about the content of a proposed order or proposal to amend, extend, or revoke an order.” So he doesn’t need to consult the director-general, and not even Dr Clark knew that.

 I’m sad that at this stage in the process the National Party cannot support this bill, because we want this to be a team of 5 million, but it’s the Government that is racing off in a direction that we cannot support, curtailing the freedom of New Zealanders without their right to have their say. Unless there are material changes to it, which will be signalled, it will be difficult to support this subsequently.

Ron Mark spoke for NZ First but his speech was mainly an attack on National with little altention given to the Bill.

Julie Ann Genter for the Green Party:

I rise in support of this bill.

This bill, I think, is absolutely necessary to ensure that all New Zealanders will benefit from the period of lockdown that we’ve already been in, and will benefit from being assured that that the rules will be able to be enforced. Because even if the vast majority of New Zealanders embrace these rules and want to stop the spread of COVID-19, it would only take a small number who ignore the rules to cause an outbreak that could quite quickly become very serious and cause us to have to move back to a stricter level.

So, of course, the vast majority of New Zealanders support the actions that have been taken thus far. I think they will absolutely respect the rules in level 2, which are not at all arbitrary, but absolutely informed by what is going to prevent the spread of the illness.

Many people were pushing boundaries if not overstepping them under Level 3 over the last two weeks.

Of course, the Green Party would always prefer that there would be a select committee, even a very short one, and we would’ve liked to have seen that. But we also understand the need for urgency right now, given the move to level 2 at—was it at midnight on Thursday morning or 11:59 Wednesday? So recognising that this is a very, very short period of time and that there was a desire to move back to level 2 sooner rather than later, then we can understand this.

But the Bill didn’t have to be only introduced to Parliament the day before the we go back down to Level 2.

David Seymour (ACT):

I rise on behalf of ACT in support of this bill to its first reading. The reason ACT supports the COVID-19 Response (Further Management Measures) Legislation Bill is very simple. It’s about the rule of law, and the rule of law matters because if it means anything to be a New Zealander, it is to live freely under democracy and the rule of law: to be able to send representatives to this House to make laws that are clear, that we can read for ourselves and understand what the law is. Having the rule of law protects the weakest people in our society because they can see it written down and it applies equally to every person.

But, unfortunately, I can only support this bill to the first reading, through this urgent process, because it has some real problems. I can understand the Government going through urgency. I won’t relitigate the issues that got us here, except to say that it has been four months–actually, nearly four and a half months–since it became clear to countries such as Taiwan that there might be an issue.

The idea that this has all suddenly happened and the Government has to rush Parliament through urgency now is a poor reflection on the preparedness of the Government. But, no matter, we’re here, and we have to rush this through urgency so we can get to level 2 lawfully and quickly. Understood.

There was a lot of debate over the severe restrictions on funerals still.

The Bill looks certain to pass, probably today, with the support of Labour, NZ First and the Green Party and possibly ACT.

First and second reading votes were the same:

  • Ayes 64 New Zealand Labour 46; New Zealand First 9; Green Party of Aotearoa New Zealand 8; ACT New Zealand 1.
  • Noes 56 New Zealand National 55; Ross.

Hansard (Tuesday): https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansDeb_20200512_20200512_34

Hansard (Wednesday: Tuesday, 12 May 2020 (continued on Wednesday, 13 May 2020) – Volume 745