Four le­gal is­sues to ad­dress af­ter the pan­demic

The New Zealand Herald - - Editorial & Letters - Alexander Gille­spie is a pro­fes­sor of law at Waikato Univer­sity.

As our politi­cians set­tle into the lock­down, they should start mus­ing on what ini­tia­tives should be un­der­taken when the emer­gency ends. Here are four rec­om­men­da­tions.

The first law to be ad­dressed is on spit­ting. Few acts are more dis­turb­ing, es­pe­cially when aimed at those keep­ing the coun­try go­ing. Cur­rently, there is a greater chance of pros­e­cu­tion un­der the Lit­ter Act for spit­ting out chewing gum than there is un­der crim­i­nal law, for spit­ting at an­other per­son.

This is some­what of an anom­aly as, on pa­per, the Crimes Act al­ready makes it a crime with a penalty of up to 14 years in jail, for any­one who, “wil­fully and with­out law­ful jus­ti­fi­ca­tion or ex­cuse, causes or pro­duces in any other per­son any disease or sick­ness”. The prob­lem is what hap­pens when some­one does not ac­tu­ally make their tar­get sick.

The fall­back po­si­tion is the of­fence of spit­ting is pur­sued as com­mon assault. With­out phys­i­cal in­jury, it is not an easy fit into ex­ist­ing law and in prac­tice, the courts have not viewed spit­ting, with­out ag­gra­vat­ing fac­tors, as on the more se­ri­ous end of assault. This should be changed.

Adding a few ad­di­tional sen­tences and penal­ties around ex­ist­ing laws, such as what is con­sid­ered of­fen­sive be­hav­iour could make a use­ful dif­fer­ence in this area.

The sec­ond law that will re­quire con­sid­er­a­tion is vac­ci­na­tion. This will be­come im­por­tant once the vac­cine for Covid-19 is de­vel­oped.

Be­tween 1863 and 1920 New Zealand had com­pul­sory vac­ci­na­tion for the one in­fec­tious disease that could be de­feated by sci­ence and medicine — small­pox. The obli­ga­tion fell away af­ter the Span­ish flu, as with mem­o­ries of that disas­ter be­ing so strong, com­pul­sion for vac­cines was not con­sid­ered nec­es­sary.

Im­proved san­i­ta­tion, town plan­ning and fur­ther vac­cines rel­e­gated many of the in­fec­tious diseases that had preyed on ear­lier gen­er­a­tions, to his­tory. Al­though the Gov­er­nor-Gen­eral re­tained the power un­der the 1956 Health Act to make reg­u­la­tions for, “the vac­ci­na­tion of per­sons for the preven­tion of quar­antin­able diseases”, sub­se­quent gen­er­a­tions often grew up with­out the same risks, or ap­pre­ci­a­tion of the tools that saved the gen­er­a­tions be­fore them.

In this at­mos­phere, the right to refuse to un­dergo any med­i­cal treat­ment, be­came part of New Zealand’s Bill of Rights, to which many have in­ter­preted the right as a free­dom not to vac­ci­nate. What will need to be de­bated is whether this in­ter­pre­ta­tion is cor­rect, and if so, in the wake of a global pan­demic, whether it can be dero­gated, sub­ject to such rea­son­able limits pre­scribed by law as can be demon­stra­bly jus­ti­fied in a free and demo­cratic so­ci­ety.

The third law is around quar­an­tine and iso­la­tion. The first laws to con­trol in­fec­tious disease in New Zealand date back to 1842. They were in­creased ev­ery time an­other wave of in­fec­tious disease swept the coun­try, and leg­is­la­tors tried to learn from past ex­pe­ri­ence. This saw fur­ther strong laws in 1872, and 1900, with par­tic­u­lar con­cerns about bubonic plague.

Fol­low­ing the Span­ish flu in 1918, the Health Act of 1920 set the stan­dards for which our cur­rent, 1956, law reigns. While this pro­vides spe­cial pow­ers for iso­la­tion and quar­an­tine, the Epi­demic Pre­pared­ness Act gives spe­cial pow­ers to the Prime Min­is­ter, and the Civil De­fence and Emer­gency Man­age­ment Act al­lows for or­ders to be given to stop any ac­tiv­ity that may cause or sub­stan­tially con­trib­ute to an emer­gency, greater mod­erni­sa­tion, speci­ficity and rigid­ity around rules must be fac­tored into 21st cen­tury leg­is­la­tion. From elec­tronic mon­i­tor­ing, to non­quar­an­tined so­cial iso­la­tion, through to lock­ing down an en­tire coun­try, the rules will need to be sharp­ened.

The fourth con­sid­er­a­tion is a Royal Com­mis­sion. Al­though I be­lieve this Gov­ern­ment has done an ex­em­plary job — bet­ter than any pre­vi­ous gov­ern­ment in sim­i­lar sit­u­a­tions since 1840 — in deal­ing with this pan­demic, it will be nec­es­sary to ex­am­ine what has hap­pened, and what can be learnt from it.

A Royal Com­mis­sion should be tasked to crit­i­cally re­view the way that health, sci­en­tific; eco­nomic; con­sti­tu­tional, law and or­der; and cul­tural con­texts were dealt with.

This should pro­vide a pub­lic record of what worked, what didn’t, what gaps be­came ap­par­ent and what could be im­proved for next time. This will not be the last pan­demic New Zealan­ders will face, and fu­ture gen­er­a­tions will need to look back on the lessons of our time, to help deal with theirs.

Alexander Gille­spie

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