Picking holes in the lockdown rule of law
kind’ and ‘be strong’. We were told that the police would seek to educate the public.
This was not, however, the full story. From day one, the prime minister warned that there would be strict enforcement of the requirements. Former Police Commissioner Mike Bush threatened New Zealanders that ‘‘we may even have a little drive with you to see where you’re going’’ and with a ‘‘trip to the cells’’ if they did not follow police instructions.
We now know that, at least for the first several days of the level 4 restrictions, it is unlikely the police had the legal authority to carry out the former police commissioner’s threats. The director-general of health subsequently issued a new order under the Health Act to try to address the situation. This order and others are now themselves the subject of a High Court challenge about their legality.
Only this week did Parliament finally enact legislation to provide clear authority for level two restrictions and their enforcement. This new law brought with it its own series of human rights issues and concerns about draconian state powers – but at least we can be sure it is actually the law.
What should have been done differently? From the start, the Government should have set out clear, comprehensive and intelligible restrictions in law containing adequate detail for New Zealanders to know exactly what was required of them. This could have been achieved by introducing special legislation or by making full use of the powers provided in existing legislation. It was clear from February that the coronavirus situation was deteriorating. There was ample time to ensure preparations could be made for the lawful imposition of any restrictions. These matters will no doubt be considered by the inevitable Royal Commission. In the interim, there will be arguments about the nature of the response, its impact and the lives it did or did not save, at least once our usual tolerance for debate has replaced the unquestioning conformity of opinion that has too often characterised the past few weeks. Dissent is a good thing, and New Zealand would have benefited from more of it over the past few weeks. It helps hold politicians to account, especially in times of emergency.
Some readers will no doubt respond that this rule of law stuff is all very interesting for the legal profession and retired politicians but is hardly of any practical impact given what New Zealand has just avoided.
I disagree. Former Chief Justice Sian Elias once said that if only judges and lawyers concern themselves with the rule of law, New Zealand is in trouble. She was right. Adherence to the concept of the rule of law would have helped avoid some of the basic failures of the past eight weeks – failures that should give all New Zealanders pause for thought.
Dissent is a good thing, and New Zealand would have benefited from more of it over the past few weeks.