Friday, June 05, 2020

The pandemic law, deadlines, and the election

One of the safeguards built into the COVID-19 Public Health Response Act 2020 was automatic expiry. The law must be renewed by Parliament every 90 days, or it is automatically repealed. Orders made under the law are automatically revoked unless confirmed by Parliament within 10 sitting days, or 60 calendar days, whichever is shorter. So what does this look like in practice?

The first order - the Alert level 2 Order - made under the law was issued on 14 May. If not confirmed, it will lapse automatically on 13 July. The 10 sitting day limit is harder to calculate, because there has been urgency, but if there is no further urgency it will need to be confirmed by 24 June. Of course, by that stage the government will have made a decision on Level 1, and it is likely that it will have been revoked anyway and that a whole new Order will be in place. If that Order come into force by 15 June, then it will need to be confirmed by 21 July, assuming no urgency. As for the law itself, its first 90-day period expires on August 11, which is after Parliament is expected to be dissolved for the election. So obviously, they'll do it beforehand - say in the last week, by August 5. Which would then set a deadline of confirmation by November 3. Which could lead to a tight timeline, since Parliament usually doesn't sit for 4-6 weeks after an election (the previous Parliament first sat on October 20, 2014, the current one on November 7, 2017, both following mid-September elections), and then wastes its first week on ceremony. There's a serious risk that if government formation is at the long end of the range (AKA if Winston is involved), then the law will expire before it can be renewed.

And then there's another problem: if the law is confirmed as quickly as possible after the election, then it runs the risk of expiring over the holiday period, as the House traditionally doesn't return until after Waitangi Day.

Parliament can solve this problem - the House can, when confirming the law, set an alternative period (say, 120 days) for renewal under s3(2)(b). But it looks like they're going to need to do it at least once, and maybe twice. The alternative is to confirm again just before the House rises for the holidays (which would give them until March. And I think that would be far more in the spirit of keeping these powers under regular and strong scrutiny than giving themselves extra time for a second time.