Tuesday, May 12, 2020

The COVID-19 Bill

With the move to level 2 later in the week, the government has to legislate urgently to provide a legal framework. So, tomorrow we'll be seeing a bill introduced and passed under all-stages urgency, without a select committee process. Because that has never gone wrong before. But in a token move towards democracy, they've released an exposure draft to the opposition and (hand-picked) experts for comment. I'm not a fan of that sort of secrecy, so if you'd like to, you can read it here (no, I'm not violating any obligation of confidence here). If you have comments, you should send them to Nicholai.Mumford@mbie.govt.nz by 10am, Tuesday, 12 May (yes, just nine hours away).

The most obvious feature of the bill is that while the government is talking a big game over the legality of the lockdown, it basicly yields the point: all future lockdown orders will be made under the new regime, not under the Health Act powers it says are currently sufficient. Which is if not an admission of illegality, at the least an admission that they're not certain of winning. So the bill will make the point academic. This isn't actually a bad thing - the outcome of a declaration of illegality would have been urgent legislation to fix the issue. This way we're just getting the fix in advance (which is what the government should have done in the first place if it had any doubts).

The overall scheme - orders from the Minister, automatically revoked if not quickly confirmed by Parliament, and revocable - is sound, but needs tweaks around duration (currently indefinite; should be time-limited and renewable like an Epidemic Notice), and around activation (notice from the PM does not have the same safeguards as the other two mechanisms). And the whole thing expires in two years, or earlier by order, which is I think at the upper limit of how long we will need it for, but I'm not sure people would want to risk it being too short (OTOH, its a very short bill to extend a sunset clause, and difficult to fuck up even under urgency, unless you're the PCO I suppose).

And now onto the bad stuff. There's a disturbing warrantless entry power for police, which will make "I hear a party" the new "I smell drugs", and an even more disturbing "papers, please" power for (ill-defined) "enforcement officers", which goes well beyond any ability to require identifying particulars currently in law (currently police can only demand your name, address and so on if you have been arrested, or to issue a summons, or when you are stopped in a vehicle - not just randomly on the street). But the real concern is the order-making power, which is so broad as to be virtually unlimited. As we've already seen, lockdown measures prima facie violate the freedoms of assembly, association, movement, expression, and the manifestation of religion. Those violations may be demonstrably justified in a free and democratic society, as I think we almost all believe the current ones are - but it will depend on the exact content of the orders, and there are no specific safeguards in place to ensure that. Legislation requires the Attorney-General to report any inconsistency to Parliament, so our legislators supposedly know what they're doing; this bill should go further, and require the Attorney-General to table a formal opinion on the consistency of each order in Parliament, so we can all see what we are sacrificing (and check that they are doing their job and giving an opinion that passes the laugh-test).

The bill also includes a power to require classes of people (and specifically not individuals) to "report for medical examination or testing in any specified way or in any specified circumstances", which prima facie violates the right to refuse to undergo medical treatment, and potentially the right not to be subjected to medical or scientific experimentation (e.g. depending on the tests and what is done with them). At present, Medical Officers of health can order individuals to do these things, but not whole classes of people, and as we've seen this week, they can simply refuse. So that's a pretty significant expansion of state power, with no real specifics on how it is intended to be used.

Obviously, all-stages urgency is not the ideal way to pass this sort of legislation. A select committee process would be better. But the government left itself with no choice with its lockdown decision. Hopefully they won't fuck it up again.