Public health trumps cost to economy

Alexander Gillespie professor of law at the University of Waikato

The world is teetering on the cusp of an economic recession, potentially as bad as the Great Depression of the 1930s. On one corner of this wave, New Zealanders are having to contemplate horrific forecasts for unemployment and economic decline.

Many are rightly concerned by what has already happened to the economy, and what may happen further in the coming months. This concern is heightened by the fact that, while the economic costs are gargantuan, the benefits of what has been avoided (as weighed in the handful of deaths and the rapidly dwindling number of sick people) are relatively small.

To this equation, it has been suggested the costs been disproportionate to the benefit. While some will be arguing this as a matter of principle, others will be thinking about their possible entitlements to compensation for what they may have lost.

The first difficulty with the above way of thinking is that, as Oscar Wilde once noted, it is possible to know the price of everything, and the value of nothing.

The value of the measures taken is found in a different type of social contract that operates in times of emergency. Emergencies, by definition, are when the normal systems of government are at risk of being overwhelmed, to which massive powers are given to those at helm. These powers reflect the value in terms of national survival, social cohesion and not just economic interactions.

This thinking aims at keeping the total population safe, providing peace of mind, maintaining law and order, while treating all citizens equally and making as few intrusions on their rights and liberties as possible. Although the economic impacts are very real, to which the Government has placed the most significant peace-time economic plan in modern New Zealand history, they are secondary, in focus in dealing with the emergency at hand.

It is this type of thinking which governs the steps the Government has taken. For example, under the Epidemic Preparedness Act, the prime minister is granted special powers if the stated quarantinable disease is ‘‘likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand (or stated parts of New Zealand) significantly’’.

The measures adopted are then justified by the effects of an outbreak that ‘‘make it, or are likely to make it, reasonably necessary’’. That is, the notice that was issued under this law – which is the epicentre for the entire lockdown that followed – is governed by broad considerations of what could be reasonably necessary in critical times.

The other laws that have also come into play in this emergency offer a little more guidance, from which the idea of ‘‘proportionate’’ responses appears. This is a large advance, as such considerations did not exist in the earlier incarnations of law that governed emergencies in New Zealand in the 20th century.

Nonetheless, it is important not to overstretch this point. For example, the amendment to the Health Act in 2016 ranked the paramount consideration within the hierarchy of overarching principles in the management of infectious diseases as the protection of public health.

Although this is the primary value, beneath this consideration, the ‘‘principle of proportionality’’ was recognised as important when dealing with individuals (who may be compelled to do specific acts) whereby the measures applied must ‘‘be proportionate to the public health risk sought to be prevented, minimised, or managed and not be made or taken in an arbitrary manner’’. For the individual, the rules applied must also be the ‘‘least restrictive alternative’’ and ‘‘apply no longer than necessary’’.

A second example of this type of thinking occurs with the Civil Defence and Emergency Act. This law does not consider issues of proportionality in times of emergency. Moreover, the law is crafted to allow decision-makers to act in a precautionary manner. This means steps can be taken in times of emergency, even if there is scientific and technical uncertainty about those risks.

This is not to suggest that proportionate actions do not apply under this law. They do, but the law was crafted to make them apply only in transition periods (which we are not currently in). In that situation, those in charge of the recovery can take steps which are in the public interest, necessary or desirable for a timely and effective recovery, and ‘‘proportionate in the circumstances’’. Again, as with the example of the Health Act, ‘‘proportionate’’ is understood in the context of that law and setting, which is focused on very practical considerations.

To take this debate one step further, if the idea were tested in court, a four-part legal test for proportionality would apply. First, the objective of the government action must be legitimate and important. Second, there must be a rational connection between the objective being pursued and the means to achieve it. Third, the action must be necessary. Finally, the public interest sought needs to be balanced against the individual interests that are lost.

While I believe it would be possible for the Government to convincingly argue in court that the actions taken were proportionate, its most convincing argument would come from the legislation at play, which empowers it to do such things.

It may be that, when the law is revisited in future, a greater emphasis will be placed upon a wider application of proportionate actions, including their economic impacts. But, when operating at the peak of the emergency, under the current law, that is not the paramount concern.

Steps can be taken in times of emergency, even if there is scientific and technical uncertainty about [the] risks.