Chris Penk
First published by The BFD 2nd July 2020
The BFD is serialising National MP Chris Penk’s book Flattening the Country by publishing an extract every day.
An Act of stupidity
The passage of the COVID-19 Public Health Response Act will be remembered as one of the most shameful episodes in our Parliament’s history.
Replacing a legally uncertain arrangement with a constitutional outrage was not a particularly good swap. As I commented in my speech at the Second Reading, the government appeared to think that these two wrongs would somehow equal a right.
Speaking of rights, for the Attorney-General to have disregarded those contained in the New Zealand Bill of Rights Act (NZBORA) in the manner that he did shows clearly that he does not take his elevated office seriously at all.
A report on the legislation’s consistency with NZBORA was published on the same day that the Bill was made public for the first time and debated through all its stages.
The tenor of that report was that in a time of emergency, such as the present day, we shouldn’t expect human rights to carry the same weight as usual.
I have always believed that it is strongly desirable to allow legislation to be passed despite apparent inconsistency with NZBORA.
For one thing, inconsistency is a very subjective matter. This is why I always roll my eyes at suggestions that unelected and therefore democratically unaccountable judges should be invited to criticise Parliament for passing laws that (in the subjective opinion of the judges) are inconsistent with NZBORA.
The other reason that it must remain possible for Parliament to legislate despite apparent inconsistency with NZBORA is that temporarily strengthened government is justifiable in times of genuine emergencies.
But it was weak to the point of being pathetic that the Attorney-General’s report to Parliament on COVID-19 Public Health Response Bill did acknowledge that it was grossly inconsistent with NZBORA.
The right approach would have been for legal advisors (including the Attorney-General) to advise that the Bill was inconsistent with NZBORA, noting however that Parliament could still choose to pass it, provided that the rights’ limitations were outweighed by the coronavirus crisis.
Instead, however, the report’s writers pretended that there was no inconsistency in the Bill with NZBORA. If you don’t believe me, here’s what it said under the ominous heading, “Extraordinary powers in exceptional circumstances”:
It is important to acknowledge at the outset that the powers in the Bill allow for the making of orders that may impose serious limitations on the rights and freedoms enshrined in the Bill of Rights Act.
The backdrop to this Bill is an unprecedented public health emergency that requires a number of exceptional powers that would be unlikely to be justified in ordinary circumstances. (emphasis added)
Elsewhere the report admitted that, “[t]he scope of orders able to be made under the Bill is broad”, which is a laughably understated characterisation.
In the words of the report itself, the Bill would enable individual government ministers to issue “Orders” that:
may also require persons to comply with measures or take action to contribute to preventing outbreak and spread of the virus. This includes significant restrictions on
movement and association.
An order may require any person or class of persons to report for a medical examination or testing, to refrain from participating in gatherings or associating with certain people. (emphasis added)
If those things are not inconsistent with the NZBORA then almost nothing ever could be.
As of the date of this document (11 May 2020), NZBORA reports no longer have any credibility in our constitutional arrangements, if ever they did.
This particular one has no place in any law library but may yet win an award for fiction at a literary awards ceremony.
Not only was the NZBORA report framed in terms that made it inconsequential, it was also incomplete or incompetent.
The report considered various NZBORA protections for inconsistency with the government’s Bill, including for example:
- “right to refuse to undergo medical treatment”;
- “freedom of movement”; and
- “liberty of the person”.
Nowhere did it consider the human right named “Manifestation of religion and belief” in the NZBORA. This despite the fact that the Ardern administration believes that it’s justifiable to limit religious gatherings to ten people but allow ten times that number to gather for various other purposes, including contact sports such as rugby.
And nowhere did it consider the human right named “Rights of minorities” in the NZBORA. This despite the Bill explicitly singling out marae (in addition to “dwellinghouses”) able to be entered by police, without a warrant.
It was fatuous that the report cited “an unprecedented public health emergency” as the basis for “a number of exceptional powers” being needed.
One of the purposes of the Bill was to provide a legal framework for the government to control the lives of New Zealanders when a state of “emergency” (there’s that word again) no longer exists in law.
As the Explanatory Note to the Bill explained, its “single broad policy” was:
to establish a fit-for-purpose legal framework for managing the unprecedented circumstances of the COVID-19 epidemic in a co-ordinated and orderly way, even if there is no longer a national state of emergency.
Other procedural and substantive aspects of the legislation were equally egregious.
The fact that the government kept even the existence of the Bill secret from many MPs – and even then on an embargoed basis, until the morning of the very day that it was debated – was an outrage.
It then proceeded to pass the Bill in urgency, through all its stages from start to finish on a single Parliamentary day.
The government broke with convention to bypass the usual select committee process, meaning that Parliament did not hear the views of ordinary citizens whose rights were to be restricted so forcefully.
Among all the absurdity, there was one aspect of this affair that was literally laughable. (Yes, I did actually laugh out loud when I read this particular provision.)
Guess who gets to make orders that people must “stay in any specified place or refrain from going to any specified place”, “refrain from travelling to or from any specified area” and “refrain from carrying out specified activities” and so on?
The Minister of Health! Dr David Clark!
That’s right, the guy who had been completely confused about rules made under an equivalent regime (or had simply been contemptuous of them, depending on who you believe) was now being given massive powers to make more.
I don’t wish to belabour the point but remember that this was the guy who went mountain biking, drove to a beach and moved house during lockdown, all while ordering the rest of us to do none of those things.
Words fail. But, then again, so did democracy.
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