Lockdown law – why so fast
The Covid-19 Public Health Response Bill passed its third and final reading last Wednesday. Attorney General David Parker described the 2020 Act as “bespoke” in a very “makeshift-Kiwi-ingenuity” type of fashion. The Covid-19 Public Health Response Act 2020 is now law, and could be in place for the next two years. So what’s all the fuss about?
Why so fast?
Otago University professor Andrew Geddis has taken umbrage over the haste in which the act was implemented. Although he and others (including the Law Society) were given the heads up, they received a draft at 5.30pm the evening before it was introduced to the House, and had to provide feedback before a 10am deadline.
It’s the provisions concerning “enforcement officers”, which is new and of concern, he says. An enforcement officer could be the director general (Ashley Bloomfield), a medical officer of health, a constable or a person employed or engaged by the Crown or Crown entity who is suitably qualified and trained. Sorry?
Once they’re all “trained up and qualified” (in what, who’s to know) they’ll have the power to go into premises and close businesses down for 24 hours if they reasonably believe it isn’t complying with the level 2 restrictions. The order could be done verbally, and there’s no requirement to keep records, or tell anyone they’ve issued such a direction. The business owner’s only option is to appeal to the District Court — which could be problematic if it’s 5pm on a Friday. Failing to
comply could end in a prison sentence of up to six months, or a fine of up to $4000.
Geddis says the legislation doesn’t seem to have a lot of procedural protections but these could be provided for at a later date through regulations under the act.
Any order made under the legislation must be consistent with the Bill of Rights but it all rests on whether a breach is “demonstrably justified” — in a public health context this could be very wide indeed.
Note also that the Amnesty International Human Rights Commission says it doesn’t believe sufficient human rights scrutiny has taken place. In a practical sense, if you feel your human rights have been breached, the onus is on you to go to the High Court and file a proceeding after the fact.
Vulnerable communities
Enforcement powers in the time of Covid-19 may demonstrably and disproportionately affect marginalised groups. The Human Rights Commission received 311 inquiries and complaints relating to the pandemic between January and May 5, for example.
JustSpeak director Tania Sawicki Mead says creating law without community consultation and without proper reasoning or procedural protections could entrench and compound issues for New Zealand’s vulnerable communities.
“We’ve seen that the most vulnerable are negatively affected, where emergency powers can be used to justify processes that are contrary to human rights obligations.” There have been widespread reports that prisoners were held for up to 23 hours per day in their cells during levels 3 and 4, for example. The Ombudsman is now looking into the matter, but Sawicki Mead says the actions — and the period of time in confinement — has contravened the Mandela guidelines and New Zealand’s international law commitments to human rights.
[As an aside, more than 2000 submissions on the Electoral (Registration of Sentenced Prisoners) Amendment Bill have been uploaded to the parliament website. The bill allows prisoners to vote if they’ve served less than three years — better than what was prescribed in the 2010 bill, which saw no voting rights for prisoners at all. The 2010 bill had just shy of 60 submissions. Does 2000 submissions suggest people feel strongly about the reinstatement of these rights, or have they had too much time on their hands during the lockdown?]
The Government also needs to address how police and “enforcement officers” are to uphold these new rules, how they make those decisions, and who’s targeted, Sawicki Mead says.
Ma¯ori are eight times more likely to be subject to police violence according to a 2018 police tactical report, for example. And according to a JustSpeak report released this year, Ma¯ori who have had no prior contact with the justice system are 1.8 times at risk of a police proceeding and seven times more likely to be charged by police than Europeans.
What’s more, the act explicitly referred to processes for entering marae, yet it didn’t refer to religious or community premises. Is this a form of further protection, or targeting — indirectly suggesting that Ma¯ori don’t have the agency to organise their affairs? It was problematic, whichever way you see it. And it’s little wonder that the Ma¯ori Council successfully urged the Government to remove the specific reference to marae.
Ultimately, something’s brewing, whether it means there will be a widespread erosion of trust in the Government, it’s still too soon to tell.